1509977 (Migration)

[2016] AATA 3352

1509977 (Migration) [2016] AATA 3352 (24 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms THUY TUONG VY DO

CASE NUMBER:  1509977

DIBP REFERENCE(S):  BCC2015/1078736

MEMBER:Mr S Norman

DATE:24 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 24 February 2016 at 11:10am

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). On 23 July 2015, the applicant sought merits review of that decision by the (now) Administrative Appeals Tribunal.

2. The delegate cancelled the visa under s.116(1)(fa)(i) of the Act 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 22 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese 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)(i) of the Act. 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 [lectures], 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. The applicant was granted a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa on 28 August 2014. In her statutory declaration of 18 February 2016,[1] the applicant said she initially arrived in Australia on 9 October 2010. The applicant also provided evidence from UTS, that she had subsequently been conferred with a Bachelor of Business on 19 August 2014.[2] Based on the evidence provided, it also appeared the applicant met the visa requirements in other courses she studied.

   [1] Tribunal - from folio 50.

   [2] Tribunal – folio 32.

10. However, by letter of 20 April 2015 the Department issued a Notification of Cancellation of Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa under section 116 of the Act.

11. The delegate noted the applicant had commenced studies on 29 September 2014, at the Australian College of Vocational Studies P/L (ACVS).  On 9 March 2015, the Department requested study records from ACVS relating to the applicant’s attendance and academic progress. The advice received noted that the applicant’s then average attendance was around 30%; and that since the applicant commenced her course of study on 29 September 2014, she had completed 1/24 units.

12. By email of 23 April 2015, the applicant said she “often got sickness after completion of the degree under a lot of pressure and challenging programs at UTS School”.  She said she changed timetables “some days”.  She then said “some days she studied at school but forgot to signing signature”.  She claimed the following day she would ask the “trainer for signature and got the answer ‘no worries’”.  She then said “I did trust on that…[and did not understand] how much importance of signature as an evidence for attendance” (sic).  The applicant also said she had to return to Vietnam in early 2015, and assumed her request for deferral (at ACVS) had proceeded. She said she did not attend a single day of school from 19 January 2015 to 26 April 2015 (though she was present in Australia from 28 February 2015).  She was not told of her lack of attendance by her educational provider. By the same email the applicant said she was “very surprised” when she found out about her course progress. She said the trainer and administration had not sent her the results of her last term.  She said she “totally completed and submitted all of the activities, projects and case studies before the course ended” and she always “asked trainer about feedback on [her] work”.  She then said after she found out about her course progress she had a meeting with her trainer and “got unreasonable answer”.

13. In her statutory declaration of 18 February 2016,[3] the applicant explained that some days she changed her timetable when she studied in the evening class but “probably trainer did not record [her] attendance”.  The applicant also said she was surprised to learn she had only completed 1/24 units.  She thought she had passed all her units.  She said she deferred her course but these forms were apparently lost.  She said she believed her course provider (ACVS) had allowed her to defer her course and she did not attend school from 19 January 2015 until 6 April 2015.

    [3] Tribunal - from folio 50.

14. In her statutory declaration of 18 February 2016,[4] the applicant also explained that her mother was seriously ill in November 2014[5].  At that time the applicant had sought advice from the (ACVS) school counsellor.  It was the counsellor who advised the applicant to defer her studies.  She then said her father had written to ACVS and submitted evidence of the mother’s illness.[6]  The applicant returned to Vietnam in January 2015, and she then returned to Australia on 28 February 2015.

    [4] Tribunal - from folio 50.

    [5] See limited medical evidence – Tribunal file – from folio 40.

    [6] Tribunal – from folio 41.

15. After returning to Australia in February 2015, the applicant was advised the Department of Immigration was investigating ACVS.  The applicant was then told by ACVS that she had to pay her tuition fees for her second semester which were then overdue.  The applicant did not agree, attended the ACVS administration office and said she had understood her leave had been approved.  She was then told her deferment application had not been received and she had been recorded as absent. The applicant said she had been frustrated with her teacher and decided to change to a new teacher in trimester three.  She said she made better progress in trimester three.

16. The applicant said on 7 July 2015, that ACVS had acknowledged she had applied for leave from her studies for the period 19 January 2015 to 13 April 2015.  The applicant also subsequently enrolled in another education institution (KOI) in her Master of Accounting. Very importantly, by letter of 13 August 2015[7] from the ACVS Director of Studies, it was claimed the applicant was given approved leave (deferment) from 19 January 2015 to 13 April 2015.  It was also claimed some of her assessments which had been marked “not yet satisfactory”, did not account for the fact the applicant was given approved leave. The Tribunal independently sought and received corroboration for this advice, from ACVS.[8] At the hearing, the applicant also said she wished to study a Master of Accounting and Hospitality in Australia, prior to starting a career in Vietnam.

    [7] Tribunal – folio 44.

    [8] Tribunal – folio 61.

17. After considering the evidence presently before the Tribunal, I am satisfied the evidence provided to the Department, did not accurately reflect the applicant’s circumstances. That was because of an inadvertent error by her education service provider (ACVS). That error was later acknowledged by ACVS.

18. Based on the accepted evidence, the Tribunal is not satisfied the reasons for the cancellation of the applicant’s Student visa are correct. The Tribunal is therefore, not satisfied the grounds for the cancellation of the applicant’s visa have been met.

19. Prior to finalising this decision, the Tribunal wishes to state that based on the applicant’s prior academic record in Australia, the medical evidence about her mother’s illness, and the appropriate acknowledgment by ACVS, the Tribunal may plausibly, have chosen not to exercise the discretion to cancel the visa, in any event. However, based on my immediately above finding, this course was not necessary.

20. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(fa)(i) of the Act 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.

    Mr S Norman
    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.