Wang v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

WANG & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2033
Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether grounds existed for cancellation of a student visa under s.116 of the Migration Act 1958 (Cth) – whether applicant was a genuine student – whether the Administrative Appeals Tribunal should exercise its discretion to cancel the visa – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.31, 65, 89, 116, 198, 338, 474

Migration Regulations 1994 (Cth), reg.2.01, sch.1.

Cases cited:

Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

First Applicant: ZHEN WANG
Second Applicant: JINGXIANG JIA
First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 3517 of 2016
Judgment of: Judge Emmett
Hearing date: 17 July 2018
Date of Last Submission: 17 July 2018
Delivered at: Sydney
Delivered on: 17 July 2018

REPRESENTATION

The Applicant appeared in person, with the assistance of an interpreter in the Mandarin language.

Solicitor for the Respondents: Ms Bernadette Rayment
(Sparke Helmore)
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3517 of 2016

ZHEN WANG

First Applicant

JINGXIANG JIA

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

  1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 23 November 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 4 April 2016  refusing the first applicant a Student  (Class TU)  (Subclass 573) visa (“Student Visa”). The first applicant is the primary applicant (“the Applicant”) and the second applicant is her husband.

Legislative framework

  1. Pursuant to s.116(1)(fa) of the Act, the first respondent may cancel a visa if it is satisfied that:

    (i)the visa holder is not, or is likely not to be, a genuine student;

    (ii)or is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

  2. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

  3. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Student Visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“

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Details
Case
[2018] FCCA 2033
Decision Date

CaseChat Overview and Summary

In *Wang v Minister for Immigration*, Emmett J considered a challenge to the cancellation of a student visa. The applicant, Ms. Wang, had been granted a Higher Education Sector Student visa (subclass 573) in May 2014. The Minister for Immigration and Border Protection formed the view that Ms. Wang was not, or was likely not to be, a genuine student, which is a ground for visa cancellation under section 116(1)(fa)(i) of the *Migration Act 1958* (Cth).

The central legal issue before the Court was whether the Minister's delegate was satisfied that Ms. Wang was not a genuine student, based on the evidence presented. This involved an assessment of whether the delegate had regard to relevant information and whether the conclusion reached was open to the delegate on the material before them. The delegate's satisfaction was informed by information from the Provider Registration and International Student Management System (PRISMS), which detailed Ms. Wang's enrolment history and periods of study.

Emmett J reasoned that the delegate's conclusion that Ms. Wang was not a genuine student was supported by the evidence. The delegate noted that Ms. Wang had enrolled in a Master of Professional Accounting course but had not commenced it, and her subsequent enrolment in a Diploma of Business was also cancelled for non-commencement. Furthermore, PRISMS data indicated that Ms. Wang had studied for a relatively short period of her onshore time, suggesting her primary intention was not to undertake study. The Court applied the principle that a student visa is granted for the purpose of achieving an educational qualification, and a lack of academic progression and significant periods of non-study could lead a delegate to be satisfied that the holder is not a genuine student.

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

The Notice of Intention to Consider Cancellation of the visa, dated 7 March 2016, referred to the evidence in the PRISMS records as follows:“Notice of intention to consider cancellation of Student ('Temporary) (class TU) Higher Education Sector (subclass 573) visa under section s116 (General Power) of the Migration Act 1958.This letter refers to your Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa which was granted on 19 May 2014.It has come to my attention, as a delegate of the Minister for Immigration and Border Protection, that there appears to be a ground for cancellation of your visa under s116(1 )(fa)(i) not a genuine student of the Migration Act 1958 (the Act) which states:116 (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;(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) or (1AB) 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) or (1AB), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.Particulars of grounds for cancellationIt appears that there is a ground for cancellation of your visa as it appears that you are not, or are likely not to be a genuine student.A student visa holder may be considered a 'non-genuine student' if it appears that their primary intention is not, or is not likely to be, to undertake study.The information because of which this ground appears to exist is as follows:- On 19 May 2014, you were granted a TU573 Higher Education Sector Student visa on the basis of undertaking a UC English Language Programs course and a Master of Professional Accounting at University of Canberra. Records indicate you arrived onshore on 27 May 2014 and have not departed Australia since.- Based on evidence available in the Provider Registration and International Student Management System (PRISMS), you studied the UC English Language Programs course from 28 July 2014 until 19 December 2014.- On 16 June 2014, your enrolment for the Master of Professional Accounting was cancelled for non-commencement of studies.- PRISMS indicates you continued to remain non-enrolled until 26 November 2015. On 27 November 2015, you enrolled in a Diploma of Business at Australian Colleges of Further Education. The enrolment for this course was cancelled on 2 March 2016 for non-commencement of studies and you have not maintained enrolment in a registered course since.Therefore, Departmental records suggest:- You have not undertaken studies in a registered course from 20 December 2014 until now and not maintained enrolment in a registered course at the Higher Education Sector level since 16 June 2014.- You were granted the TU573 Higher Education Sector Student visa on the basis of undertaking a Master of Professional Accounting course, which you never commenced and instead enrolled in a Diploma of Business. This demonstrates you do not have a genuine intent to study at the Higher Education Sector level and complete the Master of Professional Accounting course.- Since your arrival in Australia on 27 May 2014, you have not completed any courses of study other than the UC English Language Programs course, demonstrating a lack of academic progression and career planning on your part.- PRISMS indicates in 650 days onshore, you have studied for a total of 144 days. You have spent a significant period of time onshore not studying, which indicates your primary intention is not likely to undertake study.PRISMS indicates you have not maintained the study plan you outlined during the application for your TU573 Higher Education Sector Student visa and that you do not hold enrolment at the Higher Education Sector level as required by your visa.Student visas are granted for the purposes of studying towards and achieving an educational qualification in Australia. Your lack of academic progress over a substantial period of time and significant period of time not studying while continuing to remain onshore indicates you do not appear to be a genuine student as it appears your primary intention is not, or is not likely to be, to undertake study.If this is the case, your visa may be cancelled under s116(1 }(fa)(i) of the Migration Act 1958 (the Act) which states:116. (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(tis) holder is not, or is likely not to be, a genuine student…”(Emphasis added)