1509755 (Migration)

[2016] AATA 3179

1509755 (Migration) [2016] AATA 3179 (3 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Saowalak Laithong

CASE NUMBER:  1509755

DIBP REFERENCE(S):  BCC2015/1078774

MEMBER:Antoinette Younes

DATE:3 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 03 February 2016 at 12:26pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 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) 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 2 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.  The applicant was represented in relation to the review by her registered migration agent.

4. 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

5. 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). 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?

6. 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.

7. 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]).

8. 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.

9. In support of the application for review, the applicant provided a copy of the delegate’s decision record in which it was noted that:

   a.On 3 November 2014, the applicant commenced studying at the Australian College of Vocational Studies Pty Ltd (ACVS) trading as Vocational Study Australia.

   b.On 9 March 2015, the Department obtained the applicant’s study records from ACVS. The documents included attendance records, written assessments and academic transcripts. The documents showed that the applicant’s attendance was around 32% and that since she commenced the course on 3 November 2014, she did not complete any of the 24 units.

   c.On 20 April 2015, the Department sent to the applicant a notice of intention to consider cancellation to which the applicant responded on 27 April 2015. In that response, the applicant stated that she did not know why her attendance was only 32% as she regularly attended her classes and signed the attendance sheets. She stated that the process of grading assignments by the educational provider was slow and took months to finalise. She indicated that she is a genuine student and that she wants to complete her course for future benefits in Thailand. The applicant provided copies of emails.

10. In submissions to the Tribunal dated 27 January 2016, the applicant disputed the recorded attendance rate of 32% and the lack of completion of any units. It was submitted that the applicant had never received a warning in relation to her attendance or course progress during her period of enrolment in the course. The applicant indicated that she attended classes and submitted all the required assessments. She referred to emails congratulating her on getting through the first six months of the course. The applicant indicated that copies of email correspondence show that she had submitted her assessments and there were no issues with her work. It was submitted that the applicant was enrolled in a number of courses and that she changed from the Certificate III in Tourism and the Advanced Diploma of Hospitality because she did not feel the course materials were relevant to what she wanted to achieve. The applicant changed to Certificate III in Business on 11 April 2015 which she completed on 11 September 2015. She is currently enrolled in Certificate IV in Business to be completed on 27 September 2016. The applicant intends to open a small Australian-style cafe in Thailand and she is currently working in a cafe to gain experience.

11. The applicant provided to the Tribunal copies of the following:

    a.Work reference and emails from the assessor, a number of which are addressed to other recipients.

    b.Confirmation from ACVS dated 28 January 2016 that the applicant was a full-time student in the course of Certificate III in Tourism from 19 May 2014 until 15 October 2014 and that her attendance rate was 77%. Academic transcript for that course shows that the applicant had completed six of the 19 units.

    c.Academic transcript relating to the Advanced Diploma of Hospitality at ACVS commencing on 3 November 2014 indicating that the applicant did not complete any of the units.

    d.Confirmation from ACVS dated 28 January 2016 that the applicant was a full-time student in the Certificate III in Business from 13 April 2015 until 11 September 2015 and that her attendance during that period was 93%. Records provided show that the applicant was assessed as being competent in all units in relation to the course.

    e.Confirmation from ACVS dated 28 January 2016 that the applicant is a full-time student in the course of Certificate IV in Business from 28 September 2015 until “27/09/2016” and that her attendance rate is 94%.  Academic transcript from ACVS for that course shows that the applicant has so far completed three of the 10 units.

12. In the course of the hearing, the Tribunal discussed with the applicant the information noted in the delegate’s decision record that led to the visa cancellation. The applicant stated that she was not aware that her attendance had been at issue because she had signed the attendance sheets and submitted all of her assignments. She stated that as far as she was concerned she had completed all the work. The applicant explained to the Tribunal that when she came to Australia, she undertook an English language course for 6 months and subsequently was enrolled in the course of Certificate III in Tourism. She stated that she was not particularly happy with the course and changed to an Advanced Diploma of Hospitality. The Tribunal indicated to the applicant that information she had provided to the Tribunal indicates that in the course of Advanced Diploma of Hospitality, she did not complete any unit. The applicant stated that she had completed assessments.

13. The applicant gave evidence that she is currently undertaking the Certificate IV in Business course which she would complete in September 2016. She stated that her plans are to return to Thailand following completion of that course and to open her own cafe business. She stated that her family in Thailand support her studies and business plans.  The Tribunal asked the applicant how she supports herself in Australia and she stated that she works about 20 hours a week in the kitchen of a cafe, earning between $300-$400/ week. She stated that her mother transfers money to her from Thailand to cover tuition fees and other costs.

14. On the basis of the available information, whilst the Tribunal finds that from May 2014 until approximately March 2015, there were problems with the applicant’s academic progress and attendance rates, the Tribunal is satisfied that since 13 April 2015, the applicant has been enrolled in courses and that her progress and attendance rates are satisfactory. The evidence before the Tribunal, which the Tribunal accepts, indicates that the applicant was a full-time student in the Certificate III in Business from 13 April 2015 until 11 September 2015 and that her attendance during that period was 93%. The Tribunal accepts the records that the applicant has been assessed as being competent in all units in relation to the course. The Tribunal notes that the applicant commenced in the Certificate III in Business prior to the notice of intention to cancel the student visa; the notice is dated 20 April 2015 and the Tribunal is satisfied that the applicant commenced her studies in that course in good faith and because she wants to continue and complete her planned studies. The Tribunal accepts the evidence that the applicant is currently a full-time student in the course of Certificate IV in Business which commenced on 28 September 2015 and to be completed on 27 September 2016.  The Tribunal accepts the evidence that in that course the applicant’s attendance rate so far is 94% and that the applicant has completed three units of the 10. In consideration of the evidence as a whole and on balance, the Tribunal is satisfied that the applicant is a genuine student.

15. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.1161)(fa)(i) exists. It follows that the power to cancel the applicant’s visa does not arise.

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

    DECISION

17. 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.