Zhao (Migration) - [2020] AATA 54

Zhao (Migration) [2020] AATA 54 (2 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Jiaqin Zhao
CASE NUMBER:  1834186
HOME AFFAIRS REFERENCE(S):          BCC2018/4044123
MEMBER:Vanessa Plain
DATE:2 January 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 02 January 2020 at 7:47pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – enrolment cancelled – health issues – enrolled in lower level course – breach within control of applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2 cls 573.223, 573.231
CASES

Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 16 November 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)(b) of the Act on the basis that the applicant had breached a condition of her visa, namely, condition 8516. 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 11 November 2019, the Tribunal sent to the applicant an invitation to attend a hearing on 26 November 2019 at 9:45am. In response to that hearing invitation, the applicant informed the Tribunal in writing that she would not take part in the hearing scheduled for 26 November 2019. Accordingly, the Tribunal will proceed to determine the matter based upon the evidence before it to date.
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)(b) of the Act. 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?
A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.
Relevantly, it was…

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 Zhao (Migration)

Details

AGLC: Zhao (Migration) [2020] AATA 54
Case: [2020] AATA 54
Decision Date: 2 January 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Ms Zhao, who sought review of the Minister's decision to cancel her Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa. The cancellation was based on the Minister's satisfaction that Ms Zhao had breached a condition of her visa by not maintaining enrolment in a registered course that met the criteria for her visa subclass.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the visa. Specifically, the Tribunal had to assess if Ms Zhao had complied with condition 8516, which mandates that a visa holder must continue to satisfy the criteria for the grant of their visa, including maintaining enrolment in a qualifying course of study.

The Tribunal found that Ms Zhao had failed to maintain enrolment in a course that met the requirements for her Subclass 573 visa. While initially enrolled in a Bachelor of Business, her enrolment in that course was cancelled, and she subsequently enrolled in lower-level courses, including a Diploma of Accounting which was later cancelled due to non-payment of fees. The Tribunal concluded that these actions constituted a breach of condition 8516, as she was no longer enrolled in a principal course of the type specified for her visa subclass. Despite considering Ms Zhao's submissions and her intention to study a different course, the Tribunal determined that the circumstances warranted the affirmation of the visa cancellation decision.

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)(b) of the Act. 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? A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant meet cl.573.223(1A), or cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, masters degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. On 24 February 2014 the visa holder satisfied the primary criteria for a Student (Temporary) (class TU) Student (subclass 573) visa. The criteria for the grant of the Student visa required the visa holder to meet, among other criteria, subclause 573.223(1A) or subclause 573.231, which state:573.223(1A)If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:(a) the applicant gives the Minister evidence that the applicant has:(i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and(ii)educational qualifications required by the eligible education provider; and(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and(ii)any other relevant matter; and(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:(i)the costs and expenses required to support the applicant during the proposed stay in Australia; and(ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.eligible higher degree student means an applicant for a subclass 573 visa in relation to whom the following apply:(a)the applicant is enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector;(b)the principal course of study is provided by an eligible education provider;(c)if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:(i)the applicant is also enrolled in that course; and(ii)that course is provided by the eligible education provider or an educational business partner of the eligible education provider.573.231If subclause 573.223(1A) does not apply:(a)the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and(b)the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:(i) made under regulation 1.40A; and(ii) in force at the time the application was made.

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.Vanessa PlainMember

Ratio Decidendi

Legal Principle Established

Based upon the above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act 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’. In coming to the following assessment as set out below, I have taken into account the applicant’s response to the NOICC, the relevant legislation s116(1)(b) of the Migration Act, and the guidelines set out in the various PAM3 General visa cancellation powers (s109, s116, s128, s134B and s140) guidelines on visa cancellation.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 According to the decision record, the applicant was granted a Student (subclass 573) visa offshore on 29 October 2014 to study in a Certificate III and IV in EAL (Further Study) course and a Bachelor of Business course. She first arrived in Australia on 22 December 2014 as the holder of this visa. Records on PRISMS indicate the applicant has not enrolled in a course which is not a principal course of a type specified for her Student (subclass 573) visa for one year and 10 months, since 29 November 2016. In her submission, the visa holder stated that she enrolled in a course at Vocational Education Sector level and has lodged a new Student visa application in order to study this course. This indicates the visa holder’s intention is no longer to undertake a registered course at the same level as, or higher level than, the registered course in relation to which her Student (573) visa was granted. The Tribunal gives these factors minor weight towards the visa not being cancelled. The extent of compliance with visa conditions The Decision Record sets out various records on PRISMS which demonstrate the following:- On 20 February 2015 the visa holder completed her Certificate III in EAL (Further Study);- On 22 July 2016 the visa holder enrolled in a Certificate IV in Bookkeeping course and a Diploma of Accounting course at Zarah Institute of Education Pty Ltd;- On 29 November 2016 the visa holder’s enrolment in the Bachelor of Business course was cancelled by Federation University Australia;- On 23 January 2017 the visa holder completed her Certificate IV in Bookkeeping course;- On 08 December 2017 her enrolment in Diploma of Accounting was cancelled by Zarah Institute of Education Pty Ltd for “non-payment of fees” reason; and- On 20 August 2018 the visa holder enrolled in a Diploma of Leadership and Management course with Choice Academic College, commencing on 20 August 2018.