Zia (Migration) - [2019] AATA 5854

Zia (Migration) [2019] AATA 5854 (23 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hafiz Zain Ahmad Zia
CASE NUMBER:  1836866
HOME AFFAIRS REFERENCE(S):          BCC2018/4087676
MEMBER:Christine Kannis
DATE:23 August 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 23 August 2019 at 8:03am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not genuine student – multiple course enrolments cancelled – unsatisfactory attendance – lack of academic progress – not enrolled in registered course for 16 months – financial and emotional issues – lack of evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA
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 14 December 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 on the basis that the applicant is not and is not likely to be a genuine student. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal on 19 August 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
The Tribunal advised the applicant that it had a copy of his Provider Registration and International Student Management System (PRISMS) records; his attendance records from his education provider and correspondence from the education provider to him that was provided to the Department. The Tribunal advised the applicant, following the procedure of s.359AA of the Act, that subject to his comment or response, this information would be the reason or part of the reason for the decision under review being affirmed. The Tribunal advised that this information was relevant because it comprised or added to evidence that he was not a genuine student. The Tribunal advised the applicant that at any time during the hearing he could seek an adjournment and consult with his representative before responding to any of the information or questions based on the information. He did not seek an adjournment at any time.
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. Relevant to this case, these include the ground set out in s.116(1)(fa). If satisfied that the ground for…

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.

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Details

AGLC: Zia (Migration) [2019] AATA 5854
Case: [2019] AATA 5854
Decision Date: 23 August 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Zia, an applicant whose Subclass 573 Higher Education Sector visa was cancelled by the Department of Immigration and Border Protection. The dispute centred on whether the applicant was a "genuine student" as required by the Migration Act 1958 (Cth) and its associated regulations.

The Tribunal was required to determine if the ground for cancellation under s 116(1)(fa)(i) of the Act, which relates to a student visa holder not being, or not likely to be, a genuine student, was made out. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal reasoned that the applicant had not acted as a genuine student, citing multiple instances of course cancellations due to unsatisfactory attendance and academic progress. The applicant had also experienced an extended period of 16 months without enrolment in a registered course, despite remaining in Australia on a student visa. While acknowledging the applicant's stated financial and emotional reasons for needing an Australian qualification, the Tribunal found these were not sufficiently compelling to outweigh the evidence of non-compliance. The Tribunal applied the principles established in *MIMA v Hou* [2002] FCA 574 regarding the interpretation of "genuine student" and considered the applicant's overall study history and prolonged period of non-study.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that on balance, the circumstances warranted cancellation.

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. Relevant to this case, these include the ground set out in s.116(1)(fa). 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)(fa)(i) if the Minister or the Tribunal 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 s.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 Minister or Tribunal 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. There is nothing before the Tribunal to indicate that r.2.43(1C) or (1D) apply in this case. On 1 August 2014 the applicant was granted a Subclass 573 visa to study a packaged course leading to an Associate Degree of Business. PRISMS shows the applicant has been enrolled in an Associate Degree course and in a number of Diploma and Certificate courses which have been cancelled. PRISMS also shows the applicant finished a Certificate IV in Commercial Cookery and a Certificate IV in Business. Prior to the hearing the applicant provided certificates evidencing completion of these courses in 2015 and 2016. He also provided a certificate dated 19 October 2016 evidencing completion of a Diploma of Business. On 16 November 2018 the Department of Immigration and Border Protection (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that he was not and was not likely to be a genuine student. The NOICC set out the PRISMS information and the following information:·On 11 April 2016 he commenced a Diploma of Business. The CoE was cancelled due to unsatisfactory attendance. He was issued with a written notice of intention to report and he chose not to appeal within the 20 working days given to appeal. He was sent reminders but he did not respond.·On 16 January 2017 he commenced a Diploma of Human Resources Management and the CoE was cancelled due to unsatisfactory course progress. He was issued with a written notice of intention to report and he chose not to appeal within the 20 working days given to appeal. ·Although he holds a Subclass 573 Higher Education Sector visa he has never studied at a higher education level and he has no current CoEs for this level.·He has an extensive non-study period of 16 months, 24 days. He ceased study in the Diploma of Human Resources Management on 12 June 2017 and commenced study in the Diploma of Hospitality Management on 5 November 2018.·He chose to remain in Australia for the entire non-compliance period of 16 months, 24 days.·Student visas are granted for the purpose of studying towards and achieving an educational qualification in Australia. The principal basis for the grant of his visa and expectation of any genuine student is that they would give priority to ongoing enrolment and participation in a CRICOS registered course of study. His lack of academic progress whilst choosing to remain in Australia on a visa solely existing for engagement in study indicates he is not a genuine student.

Decision

Reasons for decision

The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and 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.Christine KannisMemberATTACHMENT – 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

The Tribunal finds 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 to and stay in Australia The applicant was granted a Subclass 573 visa on 1 August 2014 on the basis that he was enrolled in full-time study in registered courses and his intended study plan consisted of Certificate IV courses and Diploma courses leading to an Associate Degree of Business. The Tribunal noted that the applicant was in Australia for four years, four months and 13 days at the date of cancellation and at that time he had only completed courses at the Vocational Education and Training level. The applicant did not follow his study plan and was not enrolled in a Higher Education Sector course at the date of cancellation. The Tribunal has found that the applicant was not studying for a period of more than 16 months, from 12 June 2017 to 5 November 2018. The applicant’s non-engagement in study for an extended period weighs in favour of visa cancellation.Whether the visa holder has a compelling need to travel to or remain in Australia The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia. He said he needs to obtain an Australian qualification to secure employment in Pakistan. The Tribunal is not satisfied that the applicant has a compelling need to travel to or remain in Australia which would mean his visa should not be cancelled. The absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.The extent of compliance with the visa conditions There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this some weight in his favour.The degree of hardship that may be caused (financial, psychological, emotional or other hardship) Regarding the potential hardship which may result from cancellation of the visa, the applicant said his family expect him to complete his studies and return to Pakistan and take over the family’s financial responsibility. He said an Australian qualification is highly regarded in Pakistan and said he does not know how he will cope if he has to return to Pakistan without one. The Tribunal acknowledges that the cancellation of the applicant’s visa would be disappointing to the applicant and his family and that there are financial and emotional consequences. However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control