1509603 (Migration)

[2016] AATA 3271

1509603 (Migration) [2016] AATA 3271 (11 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Saima Rani

CASE NUMBER:  1509603

DIBP REFERENCE(S):  BCC2015/896053

MEMBER:Antoinette Younes

DATE:11 February 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 11 February 2016 at 12:43pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 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 applicant is not, or is not likely to be, 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 10 February 2016 to give evidence and present arguments.

4. The applicant was represented in relation to the review by her 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. In the delegate’s decision record provided by the applicant in support of the application for review, it was noted that:

    a.On 19 January 2015, the applicant commenced her studies at the Australian College of Vocational Studies Pty Ltd (ACVS/College).

    b.On 9 March 2015, the Department requested and obtained the applicant’s study records from the College, namely her attendance records, written assessments and academic transcript. The records obtained showed that the applicant’s average attendance rate is about 47% and that since commencing her course on 19 January 2015, she had completed 2 out of the 8 units.

11. On 30 March 2015, the Department sent to the applicant a Notice of Intention to Consider Cancellation.  The applicant responded to the Notice by stating that:

    a.There are no grounds to cancel her visa. She has been attending College regularly. The College attendance records show that her attendance is about 69%. For about two weeks from mid-February until the end of February, she was unwell and was diagnosed with rhino sinusitis and was unable to attend classes (medical certificate provided).

    b.When the Department obtained information on 9 March 2015 from the College, the third unit was ongoing and the fourth had not yet commenced. Four units are studied in one term and the course is for two terms commencing 19 March 2014. The other four units would be completed the following term. Accordingly her course progress is 100%.

    c.At the College, they study in groups and use data from student resources given to them by the College. This means that all students use resources provided by the College and therefore the same answers are provided by the students.

    d.She would be attending classes more regularly, will undergo a thorough medical examination and take good care of herself. She came to Australia to study and she intends to complete her studies.

12. The applicant provided submissions to the Tribunal dated 31 January 2016.  In summary, the submissions referred to the applicant’s education background, purpose of coming to Australia and noted that:

    a.The Department contacted ACVS and obtained the applicant’s academic records which showed that the applicant had passed two subjects in the first term. She attempted two subjects in the second term which were not completed at the time of the departmental request for the documents. The applicant’s classes started in January 2015 and the first semester which consisted of two terms was due to finish in April 2015. The Department’s cancellation of the visa failed to consider how the term works. The applicant’s attendance at that time was 47% but she was sick when the College submitted the documents to the Department. The medical certificate provided to the Department was not considered.

    b.The College has provided the applicant with her academic results and attendance letter. The applicant’s attendance is 70% and she has completed the Diploma of Business Administration.

    c.The Department’s allegations that the applicant’s assessment is identical to other students are unfounded. The applicant’s academic history indicates that she has completed a bachelor’s degree with grades of 83%. She has also completed the advanced diploma of management and a diploma of business administration. She continues to pursue her studies and she has been granted exemptions based on previous qualifications. The applicant has proven academic records and there is no doubt and that other students have copied from her own assessments. The College has not made any complaint concerning plagiarism.

    d.The applicant is a good student and she has achieved excellent grades in her bachelor degree and has passed her diploma and advanced diploma with good grades. She has substantially complied with the visa conditions and she is a genuine student intending to complete her studies to assist her future career in Pakistan. The applicant belongs to a noble family and she is receiving funds from her family. In Pakistan there is high demand for employees who are qualified in western countries and have advanced level of skills.

13. In support, the applicant provided the Tribunal with copies of documents from Pacific College of Technology relating to the completion of the advanced diploma of management in November 2013, CoE from ACVS, document relating to the death of the applicant’s grandfather, applicant’s passport, medical certificate referring to the applicant suffering from rhino sinusitis, letter from ACVS dated 25 January 2016 indicating that the applicant was a full-time student at the college in the diploma of business Administration from 19 January 2015 until 19 July 2015 and that her attendance was 70%, documents from ACVS dated 27 July 2015 confirming that the applicant fulfilled the requirements for the diploma of business administration, records from Forman Christian College referring to the applicant’s completion of bachelor of arts with honours in English, ANZ bank records, Internet searches relating to marketing positions in Pakistan, Vodafone bills, and a letter of the applicant. In that letter, the applicant outlined her academic background, reiterated the reasons for her disagreement with the Department’s assessment about her attendance, and the difficulties she had when hearing about her grandfather’s death. The applicant also outlined her academic and career aspirations, in particular the reasons for choosing the bachelor of business in marketing which would enable her to develop business and marketing skills. She has lived and grown-up in Pakistan and she intends to return and start a career in marketing.

14. In the course of the hearing, the applicant provided the Tribunal with documents relating to her current academic progress in the course of bachelor of business, majoring in marketing.

15. The Tribunal discussed with the applicant the information contained in the decision record that led to the cancellation of the visa. The applicant gave evidence that when the Department requested the documents from the College, the term was still ongoing. She said there are two semesters in the course and each semester is comprised of two terms. Accordingly, it was not possible to have completed more than the two subjects. The applicant stated that she did attend classes regularly but there were times when she did not due to illness, namely the sinus problems that she has had for some time. She said that she has been to various doctors who have a prescribed or recommended medication. She referred to documents she had provided and indicated that her attendance in the relevant course was approximately 70%. She conceded that 70% is lower than expected but stated that this was due to illness. She indicated that she is currently undertaking a bachelor of business degree majoring in marketing at the Universal Business School Sydney and that she is progressing well.

16. The Tribunal asked the applicant about her future intentions and she indicated that she wants to finish her studies in Australia and return to Pakistan where her family lives. She said she has four siblings and her parents all of whom live in Pakistan. In terms of managing her sinus condition, she indicated that she is currently managing well and she understood the significance of regular attendance and academic progress.

17. The Tribunal discussed with the applicant the information that she had submitted assessments that are similar to other students and asked her if the College had ever it expressed concerns about her academic conduct, including plagiarism. The applicant confirmed that the College has never brought to her attention any concerns and all of her assignments had been accepted and assessed.

18. The Tribunal has carefully considered the reasons for the cancellation of the visa and the Tribunal appreciates that when the visa was cancelled, there was information indicating that the applicant’s attendance was below acceptable levels. However, the applicant has provided documentary evidence to the Tribunal, which the Tribunal accepts, that she has completed the course of diploma of business administration in which the applicant was enrolled from 19 January 2015 until 19 July 2015 and that her attendance was recorded as 70% (see folio 56). The Tribunal appreciates that an attendance rate of 70% is below the expected level, however the Tribunal accepts the evidence before it that this was due to illness. The Tribunal notes that the applicant is currently enrolled in a course of study which she intends to complete.

19. On the basis of the available information and in consideration of the evidence as a whole, the Tribunal is satisfied that the applicant is a genuine student.

20. 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.

21. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    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.

    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.