Zhang (Migration) - [2019] AATA 1420

Zhang (Migration) [2019] AATA 1420 (3 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Wei Zhang
CASE NUMBER:  1703375
HOME AFFAIRS REFERENCE(S):           BCC2017/221089
MEMBER:Stephen Witts
DATE:3 January 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 03 January 2019 at 12:23pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – genuine student – lack of academic progress – extensive study gap – changed to Vocational courses – difficulties adjusting to cultural and social differences – family illness – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 189, 359AA
Migration Regulations 1994, 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 22 February 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).
The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant is not, or is likely not 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.
The applicant appeared before the Tribunal on 20 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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…

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 Zhang (Migration)

Details

AGLC: Zhang (Migration) [2019] AATA 1420
Case: [2019] AATA 1420
Decision Date: 3 January 2019

CaseChat Overview and Summary

This matter concerned an appeal by Mr Zhang against the cancellation of his Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector. The visa was cancelled by the delegate on the basis that Mr Zhang was not a genuine student, as evidenced by a lack of academic progress and an extensive study gap since his arrival in Australia in August 2015.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1)(fa)(i) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(fa)(i) permits the Minister to cancel a visa if satisfied that the holder of a student visa is not, or is likely not to be, a genuine student. The Tribunal considered the prescribed matters under s 116(1A) and r 2.43 of the Migration Regulations 1994, which include the holder's academic progress and engagement with their course of study.

The Tribunal found that Mr Zhang had not successfully completed any courses since his arrival and had only studied for a limited period. This, coupled with a substantial period of non-study while remaining in Australia on a visa intended for study, led the Tribunal to be satisfied that the ground for cancellation existed. In considering the exercise of discretion, the Tribunal acknowledged Mr Zhang's personal circumstances, including his marriage to an Australian permanent resident and the birth of his son, which created a compelling need to remain in Australia. However, the Tribunal noted that Mr Zhang came from a financially stable family and that alternative visa options might be available. Ultimately, the Tribunal concluded that the circumstances as a whole warranted the cancellation of the visa.

The Tribunal affirmed the decision to cancel Mr Zhang’s 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, provided to the Tribunal by the applicant, the applicant first arrived in Australia from China on 15 August 2015 holding a Student (Temporary) (class TU) Higher Education Sector (subclass 573) granted on 21 July 2015. According to the delegate’s decision record the applicant has demonstrated a lack of academic progress, and an extensive study gap of non-studying at the appropriate visa level over a substantial period of time, whilst choosing to remain in Australia on a visa solely existing for his engagement in study. The delegate has contended that this indicates that the applicant is not a genuine student and that it appears that there are grounds for cancellation of the applicant’s visa under section 116(1)(fa) because the applicant is not a genuine student. According to the delegate’s decision record the delegate cancelled the applicant’s visa on 22 February 2017 on the basis that the applicant is likely not to be a genuine student and that his prime intention in Australia is not, or is not likely to be, to undertake study. The delegate contended that since entering Australia in August 2015 the applicant has not successfully completed any of the courses that he has been enrolled in and has never successfully studied at higher education level which was a requirement for the purpose of his TU573 visa. The delegate also contended that since the applicant’s first entry to Australia he has only studied for a total estimated period of one month and 10 days in the one year and five month period since he first came to Australia.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION 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) 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 remain in Australia The applicant stated that he arrived in Australia in August 2015 to study here because “I was interested in business courses because it will increase my salary when I return”. The applicant stated that after finishing school he successfully completed a Bachelor of Commerce and Business Management in 2004 and that he didn’t work for some time after that as “my parents are rich.” The applicant stated that his father owns an industrial business back in his home country in China and that he has a mother father and a brother back in his home country. The applicant stated that he has not been back home since his arrival here in 2015 and has not travelled anywhere else. The applicant stated that he was currently working as a plasterer for up to 30 hours per week earning approximately $1500.00AUD per week. The applicant stated that he got married on 27 May 2018 and that his wife, also originally from China, is now a permanent resident here in Australia. He stated that they have a three month old son. He stated that he was living in Point Cook in a house owned by his wife. When asked by the Tribunal to outline whether he has a compelling need to remain in Australia he stated that “I have family in Australia, my wife has suffered depression and I can’t imagine my son not having a father”. He also stated that his son was an Australian citizen and that “if I took my son to China he wouldn’t be able to speak English” and that “I really love Australia I like to be here”. He stated that if he returned to China he would not be able to go back to his old company and that if he couldn’t find a job his parents would support him but that he would have at some point to rely on himself. The applicant’s wife, Ms Lan Wang, stated on the applicant’s behalf that his study record here in Australia was not his fault and that she needs him to look after her and the baby. The Tribunal, although acknowledging that the applicant would suffer some harm if he needed to return home to his home country in China because of his domestic situation here with his recent marriage and the recent birth of his son, is mindful that the applicant could apply for an appropriate visa to return back to Australia at some point or alternatively could return home to his home country of China with his wife and child. It is also noted by the Tribunal that the applicant in his evidence before the Tribunal at the hearing stated that he comes from a reasonably well off family and that his family would provide support to him and his family back in his home country. The applicant has not provided any other evidence other than his personal family circumstances here in Australia to demonstrate that he has a compelling need to remain in Australia.