Wong (Migration)

[2019] AATA 3672

Wong (Migration) [2019] AATA 3672 (14 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Pau Ming Wong

CASE NUMBER:  1905607

HOME AFFAIRS REFERENCE(S):     BCC2018/4105523

MEMBERS:Dr Jason Harkess

DATE:14 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 572) visa

Statement made on 14 August 2019 at 2:57pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – genuine student – unsatisfactory progress – disengaged from studies – did not attend hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of Malaysia. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 6 March 2019 cancelling his Subclass 572 student visa pursuant to s 116(1)(fa) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 9 May 2016 with an original expiry date of 15 March 2019, providing for more than 2 years 10 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3. The delegate cancelled the Applicant’s visa on the basis that he was considered not to be, or not likely to be, a genuine student.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. By letter dated 30 July 2019, the Tribunal invited the Applicant to attend a hearing on 14 August 2019 at 11:00 AM in relation to his application for review. The Applicant responded to the hearing invitation on 7 August 2019 and declined the invitation to appear at the hearing. In any event, the Tribunal proceeded on the basis that the Applicant may change his mind and attend the hearing at the scheduled time and place and, accordingly, made arrangements for the hearing to take place. However, the Applicant did not attend the hearing.

6. In the circumstances, the Tribunal has decided to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it.[1].

   [1] Section 362B(1A)(a) of the Migration Act 1958 (Cth) permits the Tribunal to proceed to make a decision in such circumstances.

7. For the following reasons, the Tribunal has decided to affirm the decision to cancel the visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Section 116(1)(fa)(i) of the Act provides that a student visa, which includes the Applicant’s visa, may be cancelled on the basis that the Tribunal is satisfied that the visa holder is not, or is not likely to be, a genuine student.

Is the Applicant not, or not likely to be, a genuine student?

Meaning of ‘Genuine Student’

1. The Act does not provide a definition for a ‘genuine student’ in the circumstances of a cancellation decision arising under s 116. However, a cancellation is premised on a student visa having been previously granted. The primary criteria for the grant of a student visa include cl 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’), which stipulate a requirement that the visa applicant demonstrate that they are a ‘genuine applicant for entry and stay as a student’ in Australia.[2] Given the express reference to ‘genuine student’ in section 116(1)(fa)(i) of the Act, the Tribunal considers that this statutory expression must be interpreted in a manner that is consistent with the similarly-worded expression ‘genuine applicant for entry and stay as a student’ found in cl 500.212 of Schedule 2 of the Regulations.

   [2] Migration Regulations 1994 (Cth), Sch 2, cl 500.212. The Tribunal notes that the Regulations have been amended since the Applicant’s visa were granted. However, the genuine applicant criterion in cl 500.212 practically mirrors its predecessor which was applied to the Applicant when he applied for his visa in 2016.

2. While not defined in the Regulations or the Act, the word ‘genuine’ may be taken to mean ‘authentic, ‘real’ or ‘true’, according to its ordinary and natural meaning.[3] The Regulations also specify two constituent elements of a genuine student visa applicant. First, a genuine applicant is one who ‘intends genuinely to stay in Australia temporarily’.[4] The applicant must demonstrate an intention to stay in Australia for a limited time only – not permanently. That intention must be unqualified.[5] This requirement reflects the temporary nature of being a student. Secondly, a genuine applicant is one ‘intends to comply with any conditions to which the visa may be subject.’[6] There are several conditions that attach to student visas, the most important of which oblige the visa holder to remain enrolled in a course of study, and to make satisfactory progress in their studies, and not to downgrade their proposed course of study to a level that sits lower on the Australian Qualifications Framework. A demonstrated intention to comply with these conditions reflects a genuine intention to be a genuine student.

   [3] See the entry for ‘genuine’ in Oxford English Dictionary (Oxford University Press, 2^nd ed, 1989); Macquarie Dictionary (Macquarie Dictionary Publishers, 7^th ed, 2017).

   [4] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(a).

   [5] See Saini v Minister of Immigration and Border Protection [2015] FCCA 2379, [23], upheld on appeal in Saini v Minister of Immigration [2016] FCA 858.

   [6] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(b).

3. Upon considering the grant of a student visa, the Regulations direct the repository of administrative decision-making power to consider the applicant’s intentions as they are at the time the decision is made.[7] Consideration must be given to an applicant’s declared intentions as well as other more objective evidence that may either support or cast doubt on their claims.[8]. The Regulations state that consideration must be given to the Applicant’s objective circumstances, their immigration history and their record of complying with conditions of any previous visas issued.[9] Regard must also be given to Direction No 69 that was issued by the Minister on 1 July 2016.[10] Direction No 69 elaborates upon the regulatory criteria. The specific considerations referred to in both the Regulations and in Direction No 69 are also not exhaustive. The Tribunal may have regard to any other matter that is relevant in determining whether an applicant is a genuine applicant for entry and stay as a student in Australia.

Distinction between Original Visa Grant and Ground for Cancellation

[7] Saini v MIBP [2016] FCA 858, [30]: ‘What is required is an evaluation of intention at the time of decision, and if at this time there is a settled intention to later seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention genuinely to stay temporarily.’

[8] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(b)(ii).

[9] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(a), (b).

[10] Minister for Immigration and Border Protection, ‘Direction No 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications’ (commencing on 1 July 2016).

1. Considering whether the Applicant is not, or is not likely to be, a genuine student for the purposes of the cancellation power under s 116(1)(fa)(i) of the Act would appear to involve, at least to some extent, a review of whether the visa holder continues to meet the primary criteria for the grant of a student visa under cl 500.212 of Schedule 2 of the Regulations.

2. In that regard, the Tribunal must consider whether, as at the time it makes its decision in relation to the application for review in relation to the cancellation, the Applicant retains the relevant intentions prescribed by cls 500.212(a) and 500.212(b). Specifically, the Tribunal must inquire as to whether the material before it suggests that the Applicant does, or does not, continue to have both an intention to remain in Australia temporarily as well as an intention to comply with the conditions attach to his visa. In relation to the latter intention, the inquiry necessarily requires the Tribunal to consider whether the Applicant retains an intention to study and to make satisfactory progress with his studies in accordance with what the visa contemplated when it was originally granted.

3. There are, however, significant differences relating to a cancellation decision, as compared to the considerations that would ordinarily be traversed in contemplating the grant of a student visa in the first place. The power to cancel a student visa under s 116(1)(fa)(i) presupposes that the student visa was validly granted. As such, it is not the role of the Tribunal now to conduct an extensive review of the merits of the original visa application and the reasoning processes that led to the visa being granted.

4. The Tribunal must proceed on the basis the Applicant was a ‘genuine applicant’ within the meaning of cl 500.212 of Schedule 2 of the Regulations at the time his visa was granted. Accordingly, consideration of the Applicant’s immigration history, personal circumstances and factors contained in Direction No 69, which pre-date the visa grant are not germane to the Tribunal’s present inquiry. The focus of the Tribunal’s inquiry for the purposes of s 116(1)(fa)(i) would ordinarily involve considering matters which have occurred subsequent to the visa grant and which are cause for concern that the Applicant may no longer be a genuine student. That is to say, either new information has come to the attention of the Department of Home Affairs (‘the Department’) or the Applicant has subsequently behaved in a manner that suggests his intentions now are inconsistent with the intentions he was found to have had at the time his visa was granted. Specifically, for the purposes of whether the s 116(1)(fa)(i) ground is made out, the Tribunal must consider whether there is material that suggests the Applicant now no longer has an intention to remain in Australia temporarily or, alternatively, that he no longer has an intention to comply with the conditions of his student visa.

Consideration of Case Against the Applicant

1. The delegate’s decision record sets out the case alleged against him by the Department. It conveniently sets out the Applicant’s education history in Australia since his student visa was granted. It appears from that record that the original purpose of the visa was to allow the Applicant to enrol in and successfully complete a Certificate IV in Business, followed by a Diploma of Leadership and Management followed by an Advanced Diploma of Leadership and Management. If all three courses were successfully completed in accordance with the course provider’s schedule, the Applicant would have completed his course ‘package’ by 17 November 2018.

2. The Applicant commenced and successfully completed the Certificate IV in Business in accordance with the original planned schedule. However, his enrolment in the Diploma course that followed was cancelled on 13 January 2017 by the course provider because the Applicant failed to pay his tuition fees.

3. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[11] 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. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s Confirmation of Enrolment (‘CoE’) in a course for which they had previously been enrolled and the reasons for doing so.

   [11] See 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].

4. The PRISMS database also recorded that the Applicant’s last day of study in the Diploma of Leadership and Management course was 16 September 2016, also recording that the Applicant ‘had poor course progress and non-payment of his fees’. The PRISMS database also recorded communications made by the course provider at this time, warning the Applicant about his responsibilities as an international student in Australia.

5. The Applicant appears to have enrolled in several other courses, including EAL, Cookery, Hospitality and Business courses but it appears all of these were cancelled, bar one, and not completed. At the date of the Applicant’s visa cancellation, the delegate noted that he was enrolled in another Certificate IV in Business which started on 4 June 2018 which was due to finish on 2 June 2019.

6. Since the grant of the Applicant’s visa in May 2016, he has successfully completed a Certificate I in EAL and a Certificate IV in Business. The delegate made some effort to calculate with precision the amount of time that the Applicant was enrolled in a course over the years, as compared to not being enrolled, and determined that he has lived in Australia on a student visa for 26 while not studying, in breach of the enrolment condition. It is clear that the Applicant has made very little progress in his study pursuits as had been contemplated by the original visa grant.

7. The Department of Home Affairs wrote to the Applicant on 5 February 2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the allegation that the delegate considered the Applicant to not be, or to no likely to be, a genuine student. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

8. The Applicant replied to the NOICC on 12 February 2019 and 6 March 2019 (‘collectively, the NOICC response’). In that response, the Applicant referred to his successful educational achievements in Australia under a previous visa issued prior to the student visa the cancellation of which is subject of review. The Applicant stated that he was well qualified for employer sponsorship for the purposes of a 457 visa, which he apparently dreamt of. He said that he became ‘terribly depressed’ after June 2016 and that depression ‘took control of my attitude towards study and also my management of funding, resulting in poor course progress and non-payment of fee.’ He further made reference to subsequently being ill-advised by various education agents. He pleaded for leniency in relation to the visa cancellation being contemplate.

9. The Applicant also provided a written response to the Tribunal which he communicated by email dated 9 August 2019. In that response, the Applicant narrated a history of his education in Australia which is largely consistent with his NOICC response and the PRISMS database. He also made reference to the difficulties he had with certain education agents and course providers. He described his experience of being a student in Australia as ‘a hell to be in’. He explained his lack of progress in his courses as being due to ‘unscrupulous education consultants’. The Applicant suggested that he did not get help for his depression because, ‘in the Chinese culture … [mental health issues are] a disgrace to the family’. It is unfortunate the Applicant has adopted that attitude. It is an attitude which has effectively deprived him of the opportunity of placing before the material that could assist his case – he chose not to seek professional help. In that regard, the Tribunal notes that no material, beyond the Applicant’s assertions himself, was provided to the Tribunal substantiating his claim that he was suffering from depression.

10. The Tribunal has otherwise inferred from the Applicant’s NOICC response, and his email to the Tribunal, that the Applicant has impliedly admitted that he had disengaged from his studies for a substantial period of his student visa. The Tribunal is of the view that principal responsibility for that situation rests with the Applicant. The Tribunal does not accept the suggestions made by the Applicant in his written communications, both with the Department and the Tribunal, that others are responsible.

11. In the circumstances, based on the available information and material, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was not likely to be a genuine student at the time the delegate made the decision. The Tribunal is satisfied that, as at the date of the Tribunal’s decision now, the Applicant is also not likely to be a genuine student. This conclusion is reached on the basis that, because of his disengagement from studying, the Applicant appears to no longer have the intention to comply with the fundamental conditions of his student visa pertaining to enrolment and study progression.

Consideration of the Discretion to Cancel the Visa

1. Having found that the Applicant is not likely to be a genuine student, the Tribunal must consider whether the visa should be cancelled. 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:

   ·the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the 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);

   ·the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

   ·the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

   ·the degree of hardship that may be caused to the 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;

   ·the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

   ·whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

   ·whether there are mandatory legal consequences arising from a decision to cancel the visa;

   ·whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Ground for Cancellation

1. By his own admission, the Applicant has disengaged from his studies, since June 2016. The Applicant referred to ‘depression’ but there is no independent evidence before the Tribunal that substantiates that claim.

Purpose of Applicant’s Stay in Australia

1. The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, is to study on a full-time basis. That purpose was effectively defeated when the Applicant ceased studying. The Tribunal is unable to discern a compelling need for the Applicant to remain in Australia having regard to the fact that the Applicant has disengaged from studying. Indeed, as the Applicant has described Australia as a ‘hell to be in’, he should be encouraged to depart the country at the earliest opportunity to remove himself from an environment which he personally believes to be so detrimental to his mental health and well-being.

Extent of Applicant’s Compliance with Visa Conditions

1. The Applicant’s conduct also effectively amounts to breach of the essential conditions of his student visa, although that is not the particular basis on which the visa has been cancelled. In the Tribunal’s view, the Department could have advanced its case against on this basis in the alternative. The Tribunal is not aware of non-compliance with other visa conditions.

Hardship

1. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully an Australian qualification. The Applicant has referred to the pay disparities between Malaysia and Australia. On the other hand, he is clearly not happy in Australia. He has described Australia as ‘hell’ and even suggested that Australian people and institutions have attempted to ‘brainwash’ him to stay in Australia. It seems his interests may be better served by returning to Malaysia.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard.

Other Visa Holders

1. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

1. The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies 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. They reflect the seriousness of the breach of visa conditions.

2. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of Malaysia and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

International Obligations

1. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

1. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 572) visa.

Dr Jason Harkess
Member