Zhan (Migration)

[2019] AATA 4929

Zhan (Migration) [2019] AATA 4929 (17 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sixian Zhan

CASE NUMBER:  1816455

HOME AFFAIRS REFERENCE(S):           BCC2018/801297

MEMBER:Stephen Witts

DATE:17 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 17 July 2019 at 9:59am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not genuine student – never studied at higher education level – extensive non-study period of more than one year – English courses completed – death of relative – family issues – stress – did not respond to Tribunal’s letter – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 119
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 29 May 2018 made by a delegate of the Minister for Home Affairs 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 the applicant is not, or is not likely 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.

3. On 16 May 2019 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at the hearing on 17 July 2019. The invitation stated that if the applicant did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The applicant did not appear before the Tribunal on that day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to hearing. In these circumstances, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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)(i). 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)(fa) - not a genuine student

6. 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.

7. 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]).

8. 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.

9. According to the delegate’s decision record, dated 29 May 2018, provided to the Tribunal by the applicant, the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 18 February 2015, to study a course package leading up to a Bachelor of Education (Honours) with Monash University. The applicant subsequently entered Australia on 10 March 2015.

10. According to the delegate’s decision record since entering Australia at that time the applicant has never studied at higher education level as required by her TU573 visa. Also, according to the delegate the applicant has only completed English courses at the English Language Intensive Courses for Overseas Students level.

11. The delegate has also contended that the applicant did not complete their extended foundation year at Monash University and ceased studying on 8 February 2016, thereby not following the study plan as envisaged at the time of the 573 visa application.

12. The delegate has also contended that the applicant had an extensive non-study period of one year, three months and 15 days between her English for Academic Purposes course dated August 2016 and her Gen English program course which commenced on 5 March 2018, and further that the applicant ceased study on 30 March 2018.

13. The Tribunal has considered all the evidence provided in the delegates file (in particular a letter the applicant wrote to the Department dated 22 April 2018 in delegates file folio 18-19) and all the material provided in the Tribunal’s file.

14. In the applicant’s letter referred to above she stated that she had an interest to study abroad at a young age and that her parents agreed to support her in coming to Australia to study. She then stated that her grandmother passed away in China in December 2016 and that this had an impact on her. The applicant explained in her letter that she had a difficult family situation with her father having a separate relationship with another woman and that her father showed a preference to his second family over hers. The applicant also stated that she became stressed during this period and needed sleeping medication and also had to vacate her place of residence at this time.

15. The Tribunal has considered the evidence presented in this letter by the applicant and does not find it convincing that this series of family incidents with the death of her grandmother and how she was treated by her father, acknowledging that her father actually paid for her to come out here in first place, and the other issues that she referred to, that this is an adequate set of circumstances to explain the applicant’s poor academic record here in Australia.

16. As noted above, the applicant did not appear before the Tribunal at the stated time and place.

17. As stated the Tribunal has considered all the material in the delegates file and the material in the AAT file and finds that the applicant is not a genuine student in accordance with s.116(1)(fa)(i).

18. For these reasons, the Tribunal is 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

19. 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, whether the visa holder has a compelling need to travel to or remain in Australia

20. The applicant provided evidence that she had always had an interest to study abroad and that her parents were supporting her. The applicant also stated that her course enrolment patterns may indicate that she has no intention to study but that this was not the case.

21. The Tribunal has considered what evidence has been provided by the applicant, noting that the applicant did not appear before the Tribunal on the day of hearing at the stated time and place, nor did the applicant ask for an adjournment, and has not provided any evidence of a compelling need to remain in Australia on student visas.

22. On this basis, the Tribunal finds that the applicant has not demonstrated a compelling need to remain in Australia.

    ·the extent of compliance with visa conditions

23. There is no evidence before the Tribunal that the applicant has not complied with her visa conditions however that is expected of all visa holders.

24. As such, the Tribunal does not lend weight to this as evidence that the applicant’s visa should not be cancelled

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

25. The applicant has not provided any evidence of a degree of hardship that may be caused should she not be able to remain here on student visas other than her original letter to the delegate dated 22 April 2018 (delegates file folio 18 to 19) referred to above and the Tribunal finds that the applicant has not demonstrated any degree of hardship.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

26. The Tribunal finds that the applicant has not provided any evidence that this cancellation arose due to the circumstances described above.

27. The Tribunal therefore finds that there are no circumstances in which the ground for cancellation arose beyond the visa holder’s control.

    ·past and present behaviour of the visa holder towards the department

28. There is no evidence that the applicant made an adequate effort to contact the department throughout the period of time here prior to her visa cancellation and the Tribunal lends some weight to this in consideration regarding the merits of the applicant’s visa cancellation.

    ·whether there would be consequential cancellations under s.140

29. There are no such considerations in this case.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

30. The Tribunal is mindful the cancellation could lead to the applicant becoming an unlawful noncitizen could be detained and removed from Australia pursuant to s.189 and s.198. The Tribunal is mindful that the visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion.

31. However, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

    ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

32. There are no such considerations in this case.

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

33. There are no such considerations in this case.

    ·any other relevant matters

34. The Tribunal has given consideration to the applicant’s evidence in regard to any reasons why the applicant’s student visa should not have been cancelled. In particular the Tribunal has considered the applicant’s evidence regarding the difficulties that she had in her family affairs back in her home country. However, the Tribunal finds that the applicant could not demonstrate a case were any circumstances arose that were beyond her control. The Tribunal also finds that the applicant did not provide evidence that demonstrated a compelling need for the applicant to remain here or that she would actually suffer any hardship from returning to her family life back in her home country.

35. The Tribunal has considered the applicant’s statements however the breach is significant. The Tribunal has considered all factors listed above both individually and cumulatively in the context of the breach.

36. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Stephen Witts
    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.