Wang, Man [2003] MRTA 1225 (3 March 2003)

CATCHWORDS: Review of student visa cancellation - Subclass 572 - section 116(1)(fa) - whether a genuine student - cancellation set aside

DECISION: The Tribunal sets aside the decision under review to cancel the review applicant's Student (Temporary) (Class TU) visa and substitutes a decision that the visa not be cancelled.

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate) on 25 September 2002 to cancel a Subclass 572 (Vocational Education and Training Sector) visa held by Ms Man Wang (the review applicant), a national of the People's Republic of China, born on 21 January 1982. The delegate's decision to cancel the visa was made under the Migration Act 1958 (the Act).

2. The review applicant lodged a valid application for review to the Migration Review Tribunal on 4 October 2002. The decision is reviewable by the Tribunal and the application for review has been validly made by a person with standing to apply for review.

3. Section 338(3) of the Act sets out the Tribunal's general power to review cancellation decisions, allowing review of a decision to cancel a visa of a non-citizen who is in the `migration zone' at the time of cancellation and not in immigration clearance.

4. When reviewing a cancellation decision, the Tribunal generally restricts itself to considering the grounds for cancellation raised by the delegate. It also examines the procedures followed by the delegate in cancelling the visa to ensure that the requirements set out in the Act have been met.

5. In reaching a decision on a review, the Tribunal is bound by the Act, the various regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the _Procedures Advice Manua_l 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). Policy guidelines should be observed where they are not inconsistent with the legislation and where there are no cogent reasons against their application. The Tribunal generally has regard to the Regulations as they stood at the time of a visa cancellation. However, subsequent amendments may apply in some circumstances.

6. The Tribunal has the power to affirm, vary, or set aside a decision to cancel a visa. Where the Tribunal sets aside a decision to cancel a visa, the effect is that the visa is treated as if it was never cancelled. If the visa would have otherwise expired, the outcome is that the visa is no longer current but that the particular consequences of cancellation no longer apply (e.g. the restrictions on applying for another visa).

7. The legislation, policy, and other materials immediately relevant to this review are:

Section 116 of the Migration Act.

Part 572 of Schedule 2 to the Migration Regulations

Migration Series Instruction: MSI 340 'Visa Cancellation under sections 109, 116, 128 and 140'.

Procedure Advice Manual 3: Generic Guidelines G - Student Visas

8. The Tribunal has had regard to the following material:

D1 - Departmental file CLF2002/048739 folios 1-109.

9. The review applicant was sent a letter on 11 November 2002 inviting her to provide comments on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The review applicant's representative advised the Tribunal that he provided comments on 28 October 2002, although it appears that the comments were not placed upon either of the files noted above. Further comments were provided on 3 December 2002.

10. A hearing was held on 20 January 2003 and oral evidence was given by the review applicant. The Tribunal was assisted by a Mandarin interpreter.

11. The review applicant was represented by Norman Potts, a registered migration agent, who attended the hearing, as did Ms Jenner Chan from his office.

12. A summary of the material contained on the above files and of the evidence given at the hearing follows.

13. The review applicant first entered Australia on 6 March 2000 on a Student visa. On 14 June 2000 the review applicant was granted a further Student 560 visa. On 17 June 2002, the review applicant was granted a Subclass 572 (Vocational Education and Training Sector) visa which was due to expire on 31 August 2004. This is the visa the cancellation of which is the subject of this review.

14. The review applicant's adviser provided submissions in connection with the review applicant's application for a Subclass 572 visa, stating that the review applicant had attended the following educational institutions and courses since her arrival in Australia:

Course: English Preparation for Matriculation Studies

Course: Diploma of International Business and Trade

15. The following evidence was provided in support of the review applicant's application for a Subclass 572 visa:

* Certified copy of a report from The Unilearn Foundation Institute dated 17 July 2000 stating that the review applicant had been enrolled in an English preparation course from 13 March 2000 to 17 July 2000. The review applicant's attendance was stated to be 100% and her English level on completion of the course to be upper-intermediate.

* Certified copy of a Certificate of Attainment awarded by The Unilearn Foundation Institute to the review applicant on 4 December 2000 for her successful completion of the English Preparation for Matriculation Studies course.

* Certified copy of a Higher School Certificate Record of Achievement dated 24 November 2000 issued by the Board of Studies confirming that that the review applicant had completed six courses whilst at the Unilearn Foundation Institute in 2000.

* Certified copy of a provisional course offer to the review applicant from the University of New South Wales for entry to a Bachelor of Design, specifying that a prerequisite course was the UNSW Foundation Year which was scheduled to commence on 28 March 2001 and to finish on 7 December 2001.

* Certified copy of a Certificate of Attendance from Lloyds International College stating that the review applicant had attended the College from 18 June 2001 to 19 October 2001 and that her total attendance during this period was 87%. The College stated that whilst her attendance had been satisfactory, the review applicant had not met course requirements. The College further stated that the review applicant had been due to finish the course on 30 November 2001 but was released early to enable her to attend UTS (Insearch).

* Certified copy of a Statement of Attainment awarded to the review applicant by Lloyds International College on 19 October 2001.

* Certified copy of Overseas Student Confirmation of Enrolment (CoE) evidencing the review applicant's enrolment in a Diploma of International Business and Trade at Insearch UTS, a course scheduled to commence on 23 October 2001 and to complete on 15 February 2003.

* Certified copy of a Certificate of Attendance issued by Inter-Continental Colleges to the review applicant on 9 October 2002 stating that her attendance in the Advanced Diploma of International Business for the period 31 January 2002 to 21 February 2002 was 93.75%.

* Certified copy of Overseas Student Confirmation of Enrolment (CoE) evidencing the review applicant's enrolment in an Advanced Diploma of International Business at Inter-Continental Colleges, a course starting on 31 January 2002 and finishing on 31 July 2004.

16. The review applicant was granted the Subclass 572 visa on the basis that she was enrolled in an Advanced Diploma of International Business with Inter-Continental Colleges. The review applicant commenced the course in January 2002.

17. On 10 September 2002, the Department wrote to Insearch UTS to request information in relation to the studies undertaken by the review applicant, including the review applicant's attendance for each term or semester for the length of her course as well as the total cumulative attendance, and whether or not the review applicant had made satisfactory academic progress.

18. Insearch UTS responded to the Department's request, in writing, on 12 September 2002. Insearch stated that the review applicant had attended 46% of classes in Semester 3 of 2001, that she had last attended the course on 16 February 2002, and that she had failed to re-enrol in Semester 1 of 2002 (commencing on 4 March 2002). Insearch further advised that the review applicant had not made satisfactory academic progress in Semester 3 of 2001.

19. On 17 September 2002, the Department wrote to Inter-Continental Colleges seeking information on the review applicant's attendance and academic progress in the Advanced Diploma of International Business course. The College responded in writing on 18 September 2002, advising that the review applicant had attended 84.31% of classes in Term/Semester 1 of 2002, 86.11% of classes in Term/Semester 2, 78.75% of classes of Term/Semester 3, and that her overall attendance was 83.20%. The College indicated that the review applicant's academic progress was satisfactory for each term/semester. The College also provided a progress report dated 18 September 2002 disclosing that the review applicant had received 2 distinctions, 2 credits, and 5 `incomplete' grades for the modules undertaken. The Principal commented on the progress report that `more effort would produce better results'.

20. On Wednesday, 25 September 2002, the Department conducted a field inspection and located the review applicant at home at 9.20 am. According to the Department's notes, the review applicant was still in her pyjamas. She stated that school started at 9 am but that she was doing an assignment from home and would go to school at 1 pm. When asked if she had attended school at all that week, the review applicant replied that she had not gone in on Monday, and had attended from 9.30 am to 1 pm on Tuesday. She was unable to recall her attendance for the previous week.

21. The Department then contacted the Principal of Inter-Continental Colleges regarding the review applicant's attendance, academic performance and any medical leave she may have taken. The Principal advised that the review applicant was due at school on that day (25 September) and that leave to complete homework during class times was not granted. The Department then asked the Principal to elaborate on her written comment of 18 September 2002 that `more effort would produce better results', and she explained that the review applicant was an intelligent student who needed to work harder to pass the remaining five subjects in the relatively small period of time before the end of the academic year. The Principal stated that the review applicant's attendance in the current (second) semester was poor at 78.75% and that this amount was inclusive of medical leave evidenced by medical certificates and thus her actual attendance was somewhat lower. When asked to comment whether she considered that the review applicant had made satisfactory academic progress given that the review applicant had only passed 4 out of 9 subjects required to pass the year, and that there was limited time left in the academic year, the Principal replied that she did not believe the review applicant should be reported as not making satisfactory academic progress and that she should be given a chance.

22. On 25 September 2002, Inter-Continental Colleges sent the Department further material in relation to the review applicant by facsimile, including:

* A copy of a letter dated 13 June 2002 from the College to the review applicant, advising the review applicant that she was making unsatisfactory academic progress in the Advanced Diploma of International Business, and that she should contact the College to discuss her studies within ten days of the date of the letter.

* A copy of a letter dated 2 August 2002 from the College to the review applicant stating that despite having provided counselling, the College was concerned that the review applicant was displaying poor attendance in her course. The review applicant was advised to contact the College to discuss her studies within ten days of the date of the letter.

* Copies of medical certificates provided by the review applicant to the College as evidence that she was unfit to attend classes from 11 to 14 February 2002 due to `gastritis', from 19 to 20 March 2002 due to `upper respiratory tract infection', and from 4 to 5 September 2002 due to `U.R.T.I. and peptic ulcer'.

23. On 25 September 2002, the Department issued a `Notice of intention to consider cancellation under section 116 of the Migration Act 1958' to the review applicant in person. The Notice stated that there may be grounds for cancelling the review applicant's visa under section 116 of the Act because the review applicant did not have a genuine intention to study in Australia. The Notice stated that academic staff at Inter-Continental Colleges had advised that: (i) the review applicant's efforts in her current studies were not of a high standard and that `more effort would produce better results'; (ii) the review applicant had passed 4 subjects in 2002 and that she was required to pass a further 5 subjects prior to the end of the academic year to make satisfactory academic progress; and (iii) that the review applicant's commitment to her studies had been poor and required further effort and attendance. The Notice stated that the review applicant's current level of attendance was 78.75% inclusive of medical certificates and that her poor attendance was further evidence of her lack of commitment to being a genuine student. The Notice also stated that the review applicant's attendance at her previous provider, Insearch, was 46% for the period immediately prior to her commencing her studies at Inter-Continental Colleges, that is from 28 October 2001 to 16 February 2002.

24. The Notice advised that the visa was liable for cancellation under subsection 116(1)(fa) of the Act, and invited the review applicant to attend an interview at an office of the Department on 25 September 2002 at 4.15 p.m.

25. The review applicant attended her scheduled interview on 25 September 2002. The review applicant gave the following information at interview:

* Her poor attendance and academic progress in a number of subjects in her current course was due to a chronic stomach illness, possibly a stomach ulcer. The symptoms had started 3 years earlier in China.

* Her poor attendance whilst at Insearch was also due to her stomach pains as well as a lack of interest in the course. She had not gone to the doctor at that time as she was too unwell to leave her house.

* Her current attendance inclusive of medical certificates was poor because she continued to suffer from her medical condition and was often unable to see a doctor. She often stayed home to work on assignments. Her teacher was aware of her situation and agreed to her staying away from school to complete school work.

26. On 25 September 2002, the delegate decided to cancel the review applicant's student visa under subsection 116(1)(fa) on the basis that he was satisfied that the review applicant was not a genuine student and that the grounds and reasons for cancelling her visa outweighed the reasons to not cancel. The delegate stated that there was little in the way of evidence that the review applicant suffered from a serious and ongoing chronic illness. He further stated that the review applicant had only provided medical certificates to her College for illnesses such as upper respiratory tract infection and gastritis, and that none of the certificates had diagnoses consistent with the illness the review applicant claimed to suffer. The delegate noted that the review applicant's education provider had no knowledge of her illness and that the review applicant had not thought it necessary to inform the school despite receiving warning letters regarding her academic performance and attendance earlier in the year. The delegate noted that the review applicant had withdrawn from a University Foundation program and a Diploma in International Trade, and concluded that the review applicant's attendance rate in her current course was below the required attendance rate and that her academic performance was marginal at best.

27. The review applicant lodged an application for review of the decision to cancel her student visa with the Tribunal on 4 October 2002. The review applicant's agent provided a submission in support of the application for review which can be summarised as follows:

* The review applicant had last applied for a student visa in March 2002, and her previous academic and attendance records were provided to the Department at that time. The Department accepted these documents without comment, and granted the review applicant a visa.

* The review applicant had attended an IELTS preparation course at Lloyds International College, which commenced on 18 June 2001 and was expected to finish on 30 November 2001, but was released early on 22 October 2002 in order to attend the Insearch course, namely the Diploma of International Business and Trade. This course commenced on 23 October 2001 and was due to conclude on 8 May 2002.

* The review applicant had by her release date from Lloyds International College satisfactorily completed the IELTS course and had attained an attendance of 87%.

* The review applicant was unhappy with the Insearch course. She departed Australia on 15 December 2001 and returned on 28 December 2001. She then enrolled in an Advanced Diploma of International Business with Inter-Continental Colleges and started attending classes on 31 January 2002. This meant that the review applicant's attendance at Insearch should have been well within the requirements of the Regulations during the actual period she attended the course. According to a Certificate of Attendance provided by Insearch, the review applicant had 46% attendance for the period 22 October 2001 to 8 May 2002, and not 22 October 2001 to 16 February 2002 as suggested by the delegate in his decision.

* Two of the four medical certificates provided by the review applicant to Inter-Continental Colleges indicated problems with the review applicant's stomach, the medical certificate dated 4 September 2002 indicating a peptic ulcer which contradicted the delegate's assumptions regarding the review applicant's health problems.

* The education provider had advised that its students were required to have satisfactorily completed all requirements of the course attended by the end of the academic year, that is 23 December 2002. The fact that a subject was presently marked `G' (incomplete) did not necessarily mean that no work had been done towards completion of that subject, but merely that the final work had not been completed or submitted for assessment.

* The education provider had advised that a student's performance could not normally be determined until the end of the academic year.

* The review applicant's Certificate of Attendance indicated that between 31 January 2002 and 24 September 2002, the review applicant had a total attendance of 80.19%. From the College records, the review applicant had an attendance rate in the first semester of 85% excluding any medical certificates. In the second semester, up until 24 September 2002, the review applicant had an attendance rate of 78%. Given that the second semester was to run for at least a further 13 weeks, until 23 December 2002, there was nothing to suggest that the review applicant's attendance rate by the end of the second semester would be less than 80%.

28. The review applicant's agent provided additional documentation together with his submission, which included a Certificate of Attendance issued by Inter-Continental Colleges on 9 October 2002 stating the review applicant's attendance in the Advanced Diploma of International Business from 31 January 2002 to 24 September 2002 to be 83.20%.

29. Mr Norman Potts in his submissions received on 3 December 2002 advised that the review applicant found Insearch to be not to her liking, and then she transferred to Inter-Continental Colleges, which she preferred. The inadequate level of attendance at Insearch is due to the fact she changed education providers.

30. Mr Potts also stated that the review applicant's attendance level at Inter-Continental Colleges between 31 January 2002 and 24 September 2002 was 80.19%. The rate was some 85% in the first semester and 78% in the second semester as at 24 September 2002. That semester still had some 13 weeks to run (i.e. until 23 December 2002) and so there was no inevitability that she would come in at under 80% by the end. Mr Potts concluded by submitting that the review applicant is clearly a genuine student.

31. Further documents were received from Mr Potts on 18 December 2002, including the following:

* Facsimile from Inter-Continental Colleges advising that the review applicant's level of attendance in the period 15 July 2002 to 13 December 2002 was 84.47%.

* Academic transcript from Inter-Continental Colleges indicating the review applicant made satisfactory academic progress in the period 31 January 2002 to 31 October 2002. She obtained 7 Bs and 2 Cs. The Principal concludes `Congratulations! Good effort has finally produced pleasing results'.

* Certificate dated 31 October 2002 from Inter-Continental Colleges indicating the review applicant has fulfilled the requirements for a Certificate IV in Business (Administration).

* Attendance certificate from Inter-Continental Colleges stating that the review applicant's level of attendance in her Advanced Diploma of International Business (course to go from 31 January 2002 to 31 July 2004) was 86.25% as at 13 December 2002.

32. The Act sets out the procedure for cancelling visas. The Departmental policy is to give all information supporting a cancellation decision to a visa holder in a notice of intention to consider cancellation (Migration Series Instruction at 12). Section 119 of the Act provides that the Department must notify a visa holder of the particular grounds on which cancellation is being considered and the visa holder invited to show either that the grounds do not exist or there are reasons that the visa should not be cancelled. Whilst the Department's practice is generally to provide a written notice to a visa holder, the Act allows for such notice to be given orally.

33. Where the Department receives additional relevant information after giving a notice pursuant to section 119 of the Act, the visa holder must be informed of that additional information. Section 120 of the Act provides that Department must give particulars of relevant information to a visa holder and invite the visa holder to comment on this information before the visa is cancelled.

34. Following the proper procedure is an essential precondition to the exercise of the cancellation power. The legislation does not allow for the Tribunal to `cure' a defect in the notification procedures.

35. The delegate in this case followed the procedure set out in subdivision E of the Act for the cancelling of visas under section 116 (General power to cancel).

36. The relevant legislation, as at the time of the cancellation decision, is set out below:

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(i) its holder is not, or is likely not to be, a genuine student; or

(ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or

(1A) The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.

(2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.

(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

37. In arriving at a decision to cancel the visa, the delegate in this case relied on the grounds provided by subsection 116(1)(fa) of the Act and followed the procedure set out in Subdivision E for the cancelling of visas under section 116 (General power to cancel).

38. Subsection 116(1)(fa) provides that, subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that in the case of a student visa, its holder is not, or is not likely to be, a genuine student or has engaged, is engaging or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

39. Student visa cancellations typically occur as a consequence of breach of condition 8202, the relevant version of which is as follows:

(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

(2) A holder meets the requirements of this subclause if:

(a) the holder is enrolled in a registered course; or

(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is an exchange student -- the holder is enrolled in a full-time course of study or training.

(3) A holder meets the requirements of this subclause if:

(a) in the case of a holder whose education provider keeps attendance records -- the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:

(i) for a course that runs for less than a semester -- for the course; or

(ii) for a course that runs for at least a semester -- for each term and semester of the course; and

(b) in any case -- the holder achieves an academic result that is certified by the education provider to be at least satisfactory:

(i) for a course that runs for less than a semester -- for the course; or

(ii) for a course that runs for at least a semester -- for each term or semester (whichever is shorter) of the course.

(4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa -- the holder is enrolled in a full-time course of study or training.

40. There is insufficient evidence to warrant a Student visa cancellation upon breach of this condition. The cancellation that has taken place in this matter was not made in reliance upon this condition.

41. The Tribunal finds that the review applicant's levels of attendance and academic progress at the times of Notification and Cancellation were lower than they ought to have been. They were not so low as to amount to a breach of condition 8202. The delegate made a finding that the review applicant was not a genuine student. The Tribunal considers that the review applicant's subsequent academic performance and level of attendance indicate that she was a genuine student at both the time of Notification and the time of Cancellation. Given that the cancellation took place on the ground of lack of genuineness as a student, this last finding determines the outcome of this review application.

* The review applicant has been at all relevant times a genuine student;

* The review applicant does not come within the scope of section 116(1)(fa);

* The review applicant's visa was cancelled pursuant to section 116(1)(fa); and

* The decision to cancel the visa must be set aside.

43. The Tribunal sets aside the decision under review to cancel the review applicant's Student (Temporary) (Class TU) visa and substitutes a decision that the visa not be cancelled.