1509367 (Migration)

[2016] AATA 3554

1509367 (Migration) [2016] AATA 3554 (17 March 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr KHAJONSAK SRISONGKHRAM

CASE NUMBER:  1509367

DIBP REFERENCE(S):  BCC2015/895076

MEMBER:James Jolliffe

DATE:17 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 17 March 2016 at 4:40pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 July 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training 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 information provided by the education provider indicated that the applicant had an average attendance record of 46% and had only completed six of the 12 units in the course that he was undertaking. 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 17 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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 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)(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. 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.

8. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 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]).

9. 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.

10. The Department file indicates that the applicant was sent on 30 March 2015 a notice of intention to consider cancellation of his student Visa. The notice of intention was based on the Department having been advised by the education provider (Australian College of vocational studies) that the applicant’s current average attendance in his course of certificate II in business was only around 46% and he had completed only six of the 12 units in the course. The notice of intention indicated that it appeared that the applicant was not, or was not likely to be, a genuine student. In those circumstances his Visa could be cancelled pursuant to s116(1)(fa)(i) of the Act. He was invited to comment and give reasons as to why his Visa should not be cancelled and he was told that he had to provide a response in writing within five working days after the receipt of the notice. The Department delegate in the decision record noted that no response had been received from the applicant and considered the applicant’s situation regarding the information provided by the education provider and after having considered that information the delegate was satisfied that there was a ground for cancellation of the applicant’s student Visa on the basis that he was not a genuine student. The delegate also considered other relevant factors/ issues in relation to the cancellation of the applicant’s Visa and decided to cancel the Visa. The applicant was informed of the cancellation by email dated 3 July 2015.

11. The applicant sought a review of that decision. The Department file indicates that the applicant by email dated 3 July 2015 to the Department, in responding to notification of the cancellation of his Visa, claimed that he had replied to the notice of intention to consider cancellation of his Visa. The Department file contains an email message indicating the applicant responded on 7 April 2015 to the notice of intention to consider cancellation of his student Visa. In summary the applicant’s response was to the effect that the information provided by the education provider to the Department did not accord with the applicant’s records of his attendance and completion of assignments. In essence he claimed that his attendance at classes was somewhere between 78% and 84%. The difference being based on the fact that he did not sign his attendance sheet for two days when he had attended classes. He provided his claimed records in terms of his attendance. He also claimed that he had finished 10 out of the 12 assignments and provided documentation by way of email records in support of that claim. He also claimed that he had never received a warning letter from the education provider because of poor attendance. He claimed in the correspondence that his teacher had said “my progress of study is fine, after I reassess other two units, I can complete the course”. He claimed on the days when he had not attended the course he had been sick.

12. The applicant’s representative on 13 March 2016 provided the Tribunal with further documents in relation to the applicant’s claims. The Tribunal was provided with documentation in relation to the applicant having fulfilled the requirements for certificate II in business from the Australian College of vocational studies Pty Ltd. That certificate was dated Monday, 20 July 2015 and there was also a transcript of the applicant’s academic record in relation to that course. There was a further document from the Australian College of Vocational Studies Pty Ltd s to the effect that the applicant had been enrolled on a full-time basis in certificate II in business from 3 November 2014 and that he had successfully completed that course on 15 May 2015. A further document from the Australian College of Vocational Studies Pty Ltd confirmed that the applicant was enrolled on a full-time basis to study certificate III in business and that he had commenced that course on 6 July 2015 and completed the course successfully on 4 December 2015. An academic record for that course in relation to the applicant was also provided. A further document was provided by the Australian College of Vocational studies that indicated that the applicant was currently studying certificate IV in business and that he had commenced on 18 January 2016 and the course finished in December 2016. The applicant also provided a statutory declaration which in summary set out the background to his studies and activities in Australia. In summary he indicated that he had been motivated to study tourism but because of English language difficulties he had undertaken a course in English language skills and had then sought to undertake the tourism course again but found that the education provider kept “changing the detail about the course” and the applicant then decided to change his studies to certificate II in business. The applicant referred to his family in Thailand deciding to open up “a bed and breakfast style accommodation” and to conduct a business with the intention of attracting foreign tourists. The applicant indicated that he thought that by undertaking business studies that would assist in the conduct of that business in the future in Thailand. He claimed that he had attended more than 80% of classes and that he had submitted his assessment tasks and that his teacher had not raised any problems about his student work. The applicant in summary referred to having completed certificates II and III and currently undertaking certificate IV in business studies. He indicated that he hoped to complete those studies and then return to Thailand if the construction of the new business is complete. The applicant also spoke about his accommodation and work arrangements and said that he assists a friend with a restaurant in Port Macquarie and lives in Sydney when he is attending classes and at other times travels to Port Macquarie to work in a friend’s restaurant. He provided details in relation to those arrangements. He also provided information in support of his transport costs and his income and details about money he receives from his mother in Thailand. He also submitted photographs of the claimed construction of the business in Thailand. He also submitted a letter from the person who conducts the restaurant in Port Macquarie who is a friend and employer of the applicant.

13. The applicant’s registered migration agent also made brief submissions in terms of the background to the applicant’s review application and provided a short chronology in relation to the history of the matter. The migration agent noted that after an FOI request had been lodged on the Department it was noted that there were email correspondence between the applicant and the Department in relation to his submission/response as to why his Visa should not be cancelled. The submission from the agent outlined the applicant’s migration history in Australia in terms of his Visa history. In summary the submissions also referred to the applicant’s intentions in enrolling in courses in terms of having undertaken a general English course and then enrolling in both the business courses and the tourism courses. The submissions note that the applicant had consulted with the education provider’s counsellor and that the education provider had suggested that the applicant change to business studies after the applicant had been frustrated by the education providers restructuring of the tourism course. In summary the submissions also claimed that the applicant had responded to the Department’s notice of intention to consider cancellation of his student Visa.

14. The agent provided a scanned copy of an FOI extract evidencing the applicant’s response. The submissions also referred to the applicant strongly disputing the information that had been provided to the Department in relation to his attendance in his course and his completion of units of the course. The submissions also referred to the applicant having completed studies in relation to certificates II and III in business and that the applicant is currently undertaking certificate IV in business and expects to finish that course on 2 December 2016. The submissions refer to the applicant’s intention of wanting to return to Thailand and be involved in managing the family bed-and-breakfast business after he completes certificate IV. The submissions also refer to the applicant’s arrangements in terms of splitting his accommodation between Sydney and Port Macquarie and his working arrangements and his travel arrangements and including financial issues relevant to those activities. The work arrangements in Port Macquarie are also said to be of assistance to him in developing his English language skills and in assisting him pursuing a healthy lifestyle. The applicant’s agent provided further documentation on 15 March 2016 which consisted of a copy of the applicant’s premium discovery pass issued by Transport New South Wales in relation to his travel arrangements in New South Wales. The Tribunal was also provided with some copies of photographs apparently of the applicant in Port Macquarie.

    TRIBUNAL HEARING

15. The applicant appeared before the Tribunal on 17 March 2016 to give evidence and present arguments. The applicant was represented by his registered migration agent.

16. The applicant confirmed his personal details. He also confirmed his current employment situation in Australia. He outlined his study history in Australia. He said that after he had come to Australia in July 2009 he had studied for 48 weeks at Macquarie College and undertaken an intensive English language course. He said after that course he had undertaken a tourism course for about 15 months. He said after that course he did a further 60 weeks of English language study at Kingsway College. He then enrolled at the Australian College of Vocational Studies in certificate III in tourism. He told the Tribunal that there had been some administrative difficulties in the conduct of that course and that he had transferred to certificate II in business studies. The applicant was uncertain in relation to some of the courses as to the actual time when the courses had been undertaken. The Tribunal during the course of the hearing referred to the documents that had been provided by the applicant’s representative in relation to courses undertaken by the applicant at the Australian College of Vocational studies.

17. The applicant told the Tribunal that when he received the notice of intention to consider cancellation of his student Visa that he had responded by email on 7 April 2015 and set out his disagreement with the attendance record and assignment record information that had been provided by the education provider to the Department. He told the Tribunal that he had kept a record of his attendance times in the course in a notebook. He told the Tribunal that he also spoke to the education provider about the information that had been provided to the Department. He said he spoke to someone in the administration area of the education provider and that they had made a note of his comments. He said he did not know if the college had contacted the Department and he did not indicate to the Tribunal that the education provider had admitted to him that any mistakes had been made in relation to the information provided to the Department. He told the Tribunal that he had never received any warning letters from the education provider in relation to unsatisfactory attendance or in relation to unsatisfactory completion of assignments. He said he obtained a bridging Visa and continued to study and he had completed certificates II and III in business and was currently undertaking certificate IV in business studies at the Australian College of Vocational Studies. He told the Tribunal that the records that he had provided to the Department in relation to his attendance in the certificate II business course (in responding to the notice) showed that he had attended the courses apart from days when he was sick and that he had completed 10 of the 12 assignments.

18. As indicated the Tribunal has been provided with documentation in support of the applicant’s claims about his studies and that documentation has been referred to elsewhere in these reasons. He told the Tribunal that the completion of the bed-and-breakfast building activity in Thailand is about 60% complete and at this stage he expected it to be completed by December 2016. He said if the work was not completed he was intending to complete an advanced course in business studies in Australia which would take a further six months of study. However if the building work in Thailand was completed and the bed-and-breakfast business was able to commence then he would return to Thailand at the completion of his studies in certificate IV. As indicated the Tribunal had been provided with photos of the building activity in Thailand. He said that the overall project involved the construction of about 20 separate accommodation buildings and included an in-house restaurant. He said he was qualified as a civil engineer in Thailand and was involved in signing contracts for the business in terms of the construction activity. He said it had been his family’s decision to send him to Australia to study in order to improve his qualifications and his English language skills to further the family business activities in Thailand. The family business is conducted about three hours north of Bangkok.

19. He told the Tribunal that the cancellation of his student Visa had not been caused because of any mistakes by him but because of an error in the system.

20. The Tribunal has considered the totality of the evidence and submissions and information provided on the applicant’s behalf and the information referred to elsewhere in these reasons. The Tribunal is prepared to accept the applicant’s evidence that he did attend the classes, apart from when he was sick, while he was undertaking the certificate II in business and that he had completed 10 of the 12 assignments at the time of his response to the issuing of the notice of intention to consider cancellation of his student Visa. The Tribunal is prepared to accept, based on the applicant’s evidence and the documentation that has been provided and that has been discussed elsewhere in these reasons, that the applicant had attended between 78% and approximately 84% of the required classes at the time of his response to that notice. The Tribunal accepts the applicant’s evidence and the documentation provided on his behalf that the applicant has successfully completed certificates II and III in business studies and is currently undertaking certificate IV business studies. The Tribunal accepts based on the applicant’s evidence and the information available to the Tribunal that the applicant responded to the Department’s notice of intention to consider cancellation of his student Visa by email on 7 April 2015. The Tribunal accepts, without any evidence to the contrary, the applicant’s evidence that he never received any warning letters from the education provider about unsatisfactory attendance or unsatisfactory completion of assignments in relation to his certificate II in business studies.

21. For these 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

22. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    James Jolliffe
    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.