1500446 (Migration)

[2015] AATA 3117

1500446 (Migration) [2015] AATA 3117 (20 July 2015)

DECISION RECORD

DIVISION:Migration and Refugee Division

APPLICANT:  Mr Yaofeng Wang

CASE NUMBER:  1500446

DIBP REFERENCE(S):  BCC2014/2598536

MEMBER:Steve Georgiadis

DATE:20 July 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 20 July 2015 at 12:21pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 January 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the visa holder was not enrolled in, or the subject of, a current offer to a principal course of a type specified for Subclass 573 visas, and therefore the delegate considered the visa holder had breached visa condition 8516. The delegate noted that there was no information to suggest that the visa holder was then enrolled in, or the subject of, a current valid offer to a Higher Education Sector course and has not continued to be a person who would satisfy either clauses 573.231 or 573.223(1A) for the grant of the visa.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 4 June 2015 to give evidence and present arguments. A further hearing was held on 20 July 2015 to consider further material provided by the applicant after the first hearing of 4 June 2015.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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). 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)(b) - non-compliance with conditions

7. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder does not comply with a condition of their visa. In this instance condition 8516 is attached to the applicant’s visa. This condition relevantly, requires the applicant to continue to be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course as required by Regulation 573.231. The principal course is of a type that is specified for Subclause 573 visas by the Minister in an instrument made under Regulation 1.40A and in force at the time the application was made.

8. Regulation 1.40 provides the definition of principal course as set out in the delegate’s decision attached to the visa applicant’s application review.  Where an applicant for a student visa proposes to undertake two or more courses of study that are registered courses, and either: one of the courses of study (course A) is a prerequisite to another of the courses (course B); or one of the courses of study (course B) may be taken only after the completion of another of the courses (course A); course B, not course A, is the principal course.

9. The applicant told the Tribunal that he came to Australia in 2011 specifically for the purpose of study.  The applicant’s enrolment in a Higher Education Sector course was granted on the basis of his intention to study with an education provider that is eligible under the streamlined student visa processing arrangements.  The delegate noted that as a result of this, the applicant was required to provide less evidentiary requirements for his visa on the basis that he was a lower immigration risk.

10. The applicant explained at the hearing that he initially enrolled in an English ‘ELICOS’ course which he completed in September 2011.  Following this he enrolled in a Diploma of Business with the Kaplan Institute (Kaplan) stating that he is intention was to continue to a Bachelor of Management course with either Kaplan or the University of South Australia.  The Tribunal finds from the applicant’s evidence and the Provider Registration and International Student Management System (PRISMS) record that the applicant enrolled in a Bachelor of Management with the University of South Australia with a course commencement date of 18 February 2014 and an end date (extended) of 31 December 2015.  However, this course was cancelled on 15 July 2013 as the applicant did not continue with the course, resulting in the delegate’s decision to cancel the applicant’s 573 visa as the delegate considered the applicant was no longer enrolled in a Higher Education Sector course.  Instead, the applicant was granted an Offer of Admission dated 28 February 2013 from Kaplan to undertake a combined Diploma of Commerce course commencing 6 November 2013 leading to entry to the Bachelor of Business at Kaplan with a completion date of 6 November 2015.

11. The applicant continued study for the Diploma of Commerce with Kaplan.  To date he has successfully completed five of the eight subjects for this course.  He told the Tribunal that he intends to complete the remaining three units of study and then proceed to undertake the Bachelor of Business course at Kaplan. He confirmed that a number of the subject units in the Diploma of Commerce count towards the Bachelor of Business program with Kaplan as there are common subject units conducted for both courses. This is consistent with the Offer of Admission letter dated 28 February 2013 for entry to the Bachelor of Business at Kaplan noting that there are units counting as ‘advanced standing’, and that completion of the Diploma of Commerce meets requirements for entry to the Bachelor of Business at Kaplan as recorded in the Offer of Admission letter.

12. The applicant reaffirmed at the second hearing on 20 July 2015 that his intention is to continue on with the Bachelor of Business course, however, this had been delayed as he was initially unsuccessful in three units in the Diploma of Commerce course and therefore not initially able to fulfil his plan to enrol in the Bachelor of Business as he is in the process of completing the remaining Diploma in Commerce units.  He told the Tribunal that if his review application is successful he plans to complete these units by November 2015.  His evidence of continuing on with the Bachelor of Business course is consistent with the responses given by the applicant on 17 October 2014 when invited to comment to the Department’s Notice of Intention to Consider Cancellation (NOICC) of the visa.

13. At the hearing, the applicant emphasised that as a result of the delegate’s decision he was not able to continue his study programme after being notified of the decision. He maintains however, that he still intends to continue in the Higher Education Sector course and complete the Bachelor of Business with Kaplan.

14. The applicant told the Tribunal that he held further discussions with Kaplan personnel in June 2015 and was provided with a copy of the Offer of Admission letter of 28 February 2013 which enables him to continue with the Bachelor of Business at Kaplan taking into consideration the unit courses successfully completed in the Diploma of Commerce and the pending 3 remaining units. The applicant requested, and was allowed, additional time to produce evidence of an offer of enrolment in such a composite course that would satisfy the requirements of the 573 visa. 

15. The Tribunal accepts that the applicant has demonstrated an intention to continue studying and also accepts the applicant’s oral evidence of his intention is to proceed to a Higher Education Sector level course. The Tribunal accepts the applicant’s evidence that the Offer of Admission letter of 28 February 2013 was provided to him following discussions with Kaplan personnel after the first hearing of 4 June 2015 and that this is still current given the Bachelor of Business course has a completion date of 6 November 2015.  The Tribunal places weight on this and the applicant’s oral evidence as it supports his stated intention to complete the Bachelor level program of study.  The Tribunal accepts that the Kaplan Institute is a registered provider who offers courses of study that are registered courses, including that to be undertaken by the applicant of Bachelor of Business. The Tribunal accepts that the Bachelor of Business course with Kaplan is an “approved” course for the purposes of this visa application. 

16. In these circumstances, the Tribunal finds from the above evidence that the Bachelor of Business with Kaplan is the applicant’s principal course for the purposes of Regulation 1.40.  The Tribunal finds from a consideration of the available evidence before it discussed, that the applicant presently satisfies condition 8516 of the visa as he is the subject of a current valid offer of enrolment to a Higher Education Sector course of study that is a principal course as required by Regulation 573.231.

17. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Steve Georgiadis
    Member