1503354 (Migration)

[2015] AATA 3428

1503354 (Migration) [2015] AATA 3428 (27 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Kashif Abbas

CASE NUMBER:  1503354

DIBP REFERENCE(S):  BCC2015/526007

MEMBER:Antoinette Younes

DATE:27 August 2015

PLACE OF DECISION:  Sydney

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 27 August 2015 at 2:49pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 March 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)(fa)(i) on the basis that the applicant is not 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.

3. The applicant appeared before the Tribunal on 11 August 2015 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should 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)(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?

7. On 30 September 2014, the applicant was granted a student visa subclass 573. On 27 February 2015, the Department notified the applicant of the intention to consider cancellation on the following basis:

   a.The Provider Registration and International Students Management Systems (PRISMS) indicates that Pax Institute of Education (Pax) had reported the applicant for leaving Pax and transferring to another provider on 28 November 2014 for course certificate IV in EAL, conducted for the period from 24 November 2014 to 24 April 2015. Pax advised that the applicant did not commence the course certificate IV EAL. Departmental records indicate that the applicant had arrived in Australia on 14 October 2014 and that he did not study for the period between 14 October 2014 to14 December 2014.

   b.Records on PRISMS indicate that the applicant was enrolled in a course of intensive English with Castle College for the period between 15 December 2014 until 22 May 2015. On 13 February 2015, Castle College advised the Department that for the Intensive English course, the applicant achieved 16% attendance, that his last day of study was 5 February 2015, and that he attended for part days on 10 days.

   c.The information available from PRISMS and Castle College indicates that the applicant did not study during the period from 1 October 2014 to 14 December 2014. Accordingly, it appeared that the applicant’s primary intention was not to undertake study and consequently he is not likely to be a genuine student.

8. In an email sent to the Department on 1 March 2015, the applicant stated that he had received the Notice of Intention to Consider Cancellation of the student visa and that he was shocked. He stated that:

   a.He contacted the College and obtained his attendance sheet (attached). He is a regular student and he attended college every week. The attendance sheet stipulates a maximum proposed attendance between 81% to 99%. He is a regular student and he is very active in his classes.

   b.Two weeks ago, his teacher Mr Sebastian promoted him to a higher secondary class because of his good performance. His attendance was down a bit from the start of February because he suffered from a fungus infection in his right foot. He obtained medication from punchbowl pharmacy which he is still using. It was only on this occasion that he left the class with his teacher’s permission. His study days are Mondays to Thursdays and do not include Fridays.

   c.He arrived in Australia on 14 October 2014 and did not study until 14 December 2014 because he came to Sydney instead of Melbourne. His family lives in Sydney and so he wanted to save accommodation costs. He was also home sick and felt he had enough time to start his course on 24 November 2014. However, the college to the intensive English course from Melbourne did not have a campus in Sydney. His “main college”, Holmes College, has a campus in Sydney and hence he changed and got admission to the English course.

   d.His motive and purpose to come to Australia were to obtain high quality and professional education. He appreciates the action taken because it demonstrates taking care of students in relation to their education.

9. The attendance record provided by the applicant for the period from 15 December 2014 to 27 February 2015 shows that the applicant’s attendance was updated for the period 19 February 2015 to 27 February 2015, part attendance on 10 February 2015 which was not previously advised by the college, and recorded attendance for the period 22 December 2014 to 9 January 2015 which is a holiday period.

10. In the decision record, the delegate noted that based on the record of attendance provided by the applicant, it shows that the applicant attended for four days for five hours, he attended 16 part days, and as a result he has attended 72 hours out of 160 hours which is below 50% attendance.

11. In support of the application for review, the applicant provided copies of his attendance record from Castle College, a statement of overall attendance from Castle College noting that the overall attendance rate of the applicant for the English language course was 80.45%, a letter from Castle College certified that the applicant was enrolled in a 22 week full-time course in the intensive English language conducted between 15 December 2014 and 15 May 2015, student guide from Holmes Institute, and a letter from Holmes Institute dated 27 July 2015 stating that the applicant is enrolled full-time in the Master of Professional Accounting course commencing 13 July 2015 and concluding 31 December 2016.

12. In the course of the hearing, the applicant gave evidence that it was correct that he did not undertake studies between 14 October 2014 and 14 December 2014. He stated that he did not know that Pax did not have a campus in Sydney. He said he made a number of enquiries and later transferred from Pax to Castle College in Sydney. In relation to his attendance rate at Castle College, the applicant disagreed with the claimed 16% attendance rate. He gave evidence that he did not attend classes during public holidays occurring in December and January. He also stated that he had a foot infection and it would have been difficult for him to walk to the train station to get to the classes and so he missed a number of days.

13. Subsequent to the hearing, the Tribunal wrote to Castle College seeking confirmation about the applicant’s attendance rate. In response dated 13 August 2015, the college advised that:

    a.The applicant’s attendance rate was 80% for the whole course commencing on 15 December 2014 and finishing on 15 May 2015.

    b.On 13 February 2015, Castle College provided DIBP copies of two warning letters relating to the applicant. On 16 February 2015, DIBP requested additional attendance documents for several students including the applicant. Castle College provided a record of the applicant’s attendance rate from 15 December 2014 to 6 February 2015. Attendance entries had not been entered into the college database at that time for that period. At that time the applicant had an average attendance rate of 62.78%. The college noted that “I am unable to understand where reference to an attendance rate of 16% was made by the college in any correspondence with DIBP”.

14. On the basis of the available information and in consideration of the evidence as a whole, the Tribunal finds that the applicant’s attendance rate from 15 December 2014 to 6 February 2015 was not reported accurately. The claimed attendance rate of 16% appears to have been made in error and is unsupported by any documents before the Tribunal. Castle College has confirmed to the Tribunal that the overall attendance rate for the applicant for the duration of the course was 80.45%. The Tribunal notes that the attendance sheet indicates that for the period from 15 December 2014 to 6 February 2015, the applicant’s weekly attendance rate was 75%, 87.5%, 91.67%, 93.75%, 95%, 88.33%, 81.43%, 78.13%. That is, the lowest attendance rate was 78.13% for week 8. Accordingly, the Tribunal is satisfied that the applicant’s attendance rate was not 16% and therefore the second ground leading to the cancellation of the applicant’s visa did not exist. Whilst the Tribunal accepts that the applicant did not study for the period between 14 October 2014 to14 December 2014, the Tribunal is satisfied that this aspect alone does not mean that the applicant is not a genuine student. Furthermore, the Tribunal is satisfied that the applicant’s subsequent conduct and academic achievements support the conclusion that he is a genuine student.

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

    DECISION

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

    Antoinette Younes
    Senior Member

    ATTACHMENT – 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.