1510033 (Migration)

[2016] AATA 3353

1510033 (Migration) [2016] AATA 3353 (23 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss ANUSARA KITTIKUNLANAN
Mr YUTTHANA KHIAOKHAM

CASE NUMBER:  1510033

DIBP REFERENCE(S):  BCC2015/955319

MEMBER:Gary Humphries

DATE:23 February 2016

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 23 February 2016 at 4:42pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 July 2015 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) 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) on the basis that the applicant is not, or is likely not 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicants appeared before the Tribunal on 12 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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). 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?

   s.116(1)(fa) - not a genuine student?

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 his decision record, the Minister’s delegate relied on advice from the institution at which the applicant had been studying, the Australian College of Vocational Studies (the College). That advice, produced following a request from the Department of 9 March 2015, was that the applicant had an average attendance of around 52 percent and had completed none of the 19 units for which she was then registered. The delegate also noted that a review of the applicant’s written assessment had demonstrated that a significant proportion of her written work was identical to that of a number of other students within her class.

11. The PRISMS record on the departmental file shows that the applicant enrolled in Australia in a number of courses in business and management during 2012, 2013 and 2014. She appears to have completed these courses, though two courses – one in English for International Communication and the other in accounting – were cancelled. The course for which he was enrolled from 19 January 2015, and which is the subject of the visa cancellation decision, was a Certificate III in Tourism.

12. The applicant told the Tribunal that, at the orientation for her course, she was told by the admin officer at the College to turn up on Mondays and Tuesdays but no mention was made of Wednesdays. She said she would turn up at the college on certain days to submit assessments. She said she would sometimes enquire as to the outcome of assessments she had submitted, only to be told that the information had not yet been updated on the College’s system. She said that the gap between submitting assessments and having them marked could sometimes be a long time – up to a whole term.

13. She said that Immigration came to check at the school at some point before April 2015, and after that the College advised her that she should also attend on Wednesdays. She said that she did so after being requested. She said that in consequence her attendance record at the College rose to 84 percent for the 2015 academic year – a matter verified by the College’s certificate dated 21 December 2015 which was before the Tribunal.

14. With respect to the allegation that her work was identical to that of other students, the applicant explained that the teachers at the College would write the answers they expected to the assessments on the boards in the classrooms; it was therefore not surprising that students would have identical or very similar answers when the assessments were handed in. The applicant denied that she had ever copied another student’s work to submit as her own.

15. Before the Tribunal was a certificate from the College, dated 21 December 2015, indicating that the applicant had fulfilled the requirements for a Certificate III in Tourism. She also advised that she was enrolled for further study in 2016.

16. Considering all the evidence before the Tribunal, the most probable explanation for the poor attendance record and absence of completed units in the early part of her course were factors beyond the applicant’s control. It appears that the applicant was given better information in around April, possibly as a result of the Department arranging a visit to the College, and consequently her attendance record improved and she satisfied the requirements of the course. There also appears to be a perfectly satisfactory explanation for the reason that her submitted work is very similar to that of other students.

17. In all the circumstances the Tribunal considers the applicant to be a genuine student, and that the ground for cancellation of her visa under s.116(1)(fa) is not made out.

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

    DECISION

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

20. The Tribunal has no jurisdiction with respect to the second named applicant.

    Gary Humphries
    Deputy President

    
    

    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.