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

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).
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.
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.
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
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
A visa…

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 Zhan (Migration)

Details

AGLC: Zhan (Migration) [2019] AATA 4929
Case: [2019] AATA 4929
Decision Date: 17 July 2019

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Zhan, against the decision to cancel her Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The Minister had cancelled the visa under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) on the ground that the applicant was not a genuine student. The applicant had been granted the visa to study a Bachelor of Education (Honours) at Monash University, but had only completed English language courses and had not studied at a higher education level since entering Australia.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(fa)(i) of the Act was made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider whether the applicant was a genuine student, having regard to the prescribed matters under section 116(1A) and regulation 2.43 of the Migration Regulations 1994 (Cth).

The Tribunal reasoned that the applicant had not studied at a higher education level as required by her visa, having only completed English courses. Furthermore, she had an extensive period of over a year where she was not studying, and had ceased her studies on multiple occasions. The Tribunal found that the applicant had not provided evidence of a compelling need to remain in Australia, nor had she demonstrated any degree of hardship that would be caused by her visa cancellation. While there was no evidence of non-compliance with visa conditions, the Tribunal also noted the applicant's lack of adequate effort to contact the Department prior to the cancellation. The Tribunal concluded that the ground for cancellation was established and that the discretion to cancel the visa should be exercised.

The Tribunal affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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 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. 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]). 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. 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. 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. 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. 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.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.Stephen WittsMemberATTACHMENT – 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.

Ratio Decidendi

Legal Principle Established

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