1510441 (Migration)

[2016] AATA 3719

1510441 (Migration) [2016] AATA 3719 (12 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms U-Maporn Chunhasert

CASE NUMBER:  1510441

DIBP REFERENCE(S):  BCC2015/1079283

MEMBER:Antoinette Younes

DATE:12 April 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 12 April 2016 at 4:17pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 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 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 4 April 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 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 decision record provided by the applicant in support of the application for review, it is noted that:

    a.On 13 October 2014, the applicant commenced studying at the Australian College of Vocational Studies Pty Ltd (ACVS/College).

    b.On 9 March 2015, the Department requested from the College the applicant’s records. The College provided the applicant’s attendance records, her written assessment, and her academic transcripts.

    c.The documents provided indicated that the applicant’s average attendance rate is around 40% and that since she commenced her course on 13 October 2014, she completed 3/16 units.

11. On 20 April 2015, the Department sent to the applicant a notice of intention to consider cancellation to which the applicant responded on 28 April 2015. In that response, the applicant disagreed with the information; she stated that it was impossible that her attendance rate was “57%” and she has submitted all of her assignments. She has spoken with her teacher, Peter, who asked students to send the assignments via USB.  He said he would check again the assignments. She is a genuine student who has enrolled in a course to gain knowledge and experience.

12. On 2 April 2016, the applicant provided copies of the following documents:

    a.Confirmation of enrolment, and an enrolment letter from Queen Anne English College indicating that the applicant is enrolled in the course of diploma of human resources management commencing 13 July 2015 and finishing on 19 June 2016.

    b.ACVS’ term 1 - 2015 timetable.

    c.Diploma of human resource management course information.

    d.Confirmation of enrolment from ACVS in the course of diploma of human resources management commencing on 13 October 2014 and finishing on 11 September 2015.

13. In submissions to the Tribunal dated 2 April 2016, the applicant’s representative indicated that the applicant’s claimed “low attendance and unsatisfactory course progress”, were due to “poor school management”. The applicant was told by an administrative officer that she was required to attend classes on Mondays and Tuesdays but Monday was the only compulsory day of attendance. She was told that she could do her assignments either by attending College or to obtain them from elsewhere on Tuesdays, Wednesdays, or any other day.  The College often lost the applicant’s assignments. The records provided to the Department for the period from 13 October 2014 to 9 March 2015 only cover one concluded term, being term four of 2014. Term one of 2015 had not concluded. The applicant has completed five units at the time she responded to the Department in April 2015, which is more than half of the total units for the completion of the diploma. According to publications by the Industry Skills Council, the applicant needed to complete six core units and three selective in order to meet the academic requirements for graduation. The applicant has never been certified or told by the College that her attendance or academic progress was not satisfactory. The applicant’s completion of three units out of nine is consistent with the course progress requirements. The applicant has since changed to another College and she is due to complete that course in June 2016. She has completed a diploma of IT and she has gained IT skills in Australia which would be useful in helping in her future aspirations when she returns to Singapore.

14. In the course of the hearing on 4 April 2016, the applicant gave evidence that she came to Australia in August 2009 as the holder of a student visa to undertake an English course for three months which she completed. She stated that subsequently she attended a College in Redfern to undertake a course in IT. She stated that there were too many students in a classroom which meant that the teacher was unable to look after all of them, and there was a high turnover of teaching staff. She was there for one year and later transferred. She stated that subsequently she obtained permission from the College and transferred. 

15. The Tribunal asked the applicant if she had completed any courses or units at ACVS and she stated that there were three terms and that she had started in the second term. She stated that the school started to change the course structure and she began to feel uncertain if she would survive.  She wanted to change to another course, namely to a course in HR. Later the applicant stated she studied HR for one and a half terms until she was contacted by the Department. The applicant stated that she did not complete any courses and that she transferred around May 2015 to Queen Anne College to undertake a course in HR in which she is currently enrolled and expecting to complete in June 2016. The Tribunal asked the applicant if she has completed any subjects in this course and the applicant stated that she completed subjects at ACVS as “prescribed”. The Tribunal indicated to the applicant that there was no transcript before the Tribunal about her progress in the current course and the applicant referred to a document that she provided prior to the hearing, namely, the enrolment letter from Queen Anne College (folio 23).

16. The Tribunal discussed with the applicant the information that led to the cancellation of her student visa as referred to in the delegate’s decision record provided by the applicant in support of the application for review. The applicant stated that the claimed attendance rate of 40% is incorrect because she had always attended and her trainer, Peter did not always sign the attendance sheet. She stated that she commenced the course one week after the term had started and at the time of the departmental request, she had only been at the College for one and a half terms. She stated that she had never received any warnings from the College about her attendance or academic progress and when she received the letter from the Department, Peter referred her to the office and the staff told her that the information about her attendance and academic progression had not been updated in the system. She stated that she asked the staff at the office to check her attendance and they told her that the 40% rate is not possible. She stated that the staff however refused to let her have a look at the records.

17. In accordance with s.359AA, the Tribunal discussed with the applicant the information contained in the departmental file, namely the ACVS Absence List and Transcript of Academic Record (folios 19-21), both of which were printed on 27 March 2015. The Tribunal indicated to the applicant that the information contained in those documents is relevant because it could lead the Tribunal to find that her attendance rate was 40% during the relevant period and that she had only completed two units out of the 16 and she received a credit transfer for one unit. The Tribunal indicated that the information is relevant because it could lead the Tribunal to find that she was not a genuine student and therefore the Tribunal could affirm the decision under review. When the Tribunal invited the applicant to comment on or respond to that information and whether she needed additional time, the applicant stated that sometimes Peter asked her to sign the attendance sheet and sometimes when she submitted her work, he would suggest that she could go. She stated that the College had submitted the documents to the Department and that they were no longer in possession of those documents. She stated that she attended classes on Mondays and on Tuesdays she went to College to complete her assignments. She said that on Wednesdays she did not have to attend once her work had been submitted. She stated that she submitted her work by emails and when Peter was very busy, he told her that she could go home. She stated that she had assumed that once she turned up it was up to Peter to tell her whether she could stay or leave.

18. The Tribunal asked the applicant about the course structure of the diploma of human resources management. The applicant said that until she received the letter from immigration, she did not know that there were 16 subjects. She stated that she was just focusing on her assignments. She stated that her trainer told her that there were only nine subjects. She stated that there are four terms, each runs for three months. The Tribunal noted the applicant’s confusion about course requirements and asked her why she was confused about a course that she was undertaking. The applicant gave evidence that Peter did not explain to her. The applicant reiterated her earlier evidence that she had always submitted her homework.

19. In oral submissions to the Tribunal, the representative referred to documents provided to the Tribunal, namely the document titled BSB50613 Diploma of Human Resources Management[1], and ACVS course information relating to the Diploma of Human Resource Management BSB50615, both showing that the course is structured into nine subjects rather than 16 subjects. The Tribunal indicated there appears to be an inconsistency in the information before the Tribunal in relation to the course requirements. The representative was granted time to provide further submissions.

    [1] Australian government, Industry Skills Council, 2014

20. The Tribunal indicated to the applicant that if the Tribunal were to find that the ground for cancellation exists, the Tribunal nevertheless still has discretion as to whether or not the visa should be cancelled. The applicant gave evidence that she is currently studying in the course of diploma of human resources management at Queen Anne College which she anticipates to complete in June 2016. The applicant stated that she would like to complete the course. In relation to questions about any family in Australia, the applicant stated that she currently lives with her relatives and that her parents, sister, and brother live in Thailand. She stated that she is divorced and has a 20-year-old daughter who is currently studying in Singapore.

21. Post hearing, the Tribunal wrote to ACVS and requested information about the course structure and requirements. On 11 April 2016, the Tribunal received a response from the College essentially indicating that the course of diploma of human resources management was changed in format by the College during the applicant’s period of study and that the latest “format of nine units is the current model being studied by all students…. It is considered satisfactory to have completed two units in each term…” In the case of the applicant, she had a credit transfer for one unit and had successfully completed three more which comprises 75% course progression. The applicant has also “submitted other assignments showing a partial completion of other units. Overall, we considered this as satisfactory”. In relation to concerns by the Tribunal about the authorship of the applicant’s work, the College indicated that “there is always some acceptable usage by students of material that was used during the delivery of each unit, and we appreciate that a conscientious student might use other references for guidance. In this student’s case it was considered genuine and no further action was deemed necessary”.

22. In post hearing submissions, the applicant’s representative provided further information relating to the course structure and information in relation to her divorce. In a transcript of academic record from ACVS dated 4 April 2016 relating to the applicant, it is noted that in relation to the course of diploma of human resources management the applicant had completed three subjects out of nine and she was credited with one subject out of nine.

23. Whilst the Tribunal has concerns about the applicant’s evidence and the information she has provided, other information before the Tribunal indicates that there was confusion about the course requirements. Both the College and other sources indicate, and the Tribunal accepts that the course required the completion of nine units and not 16 units as determined by the delegate. The Tribunal acknowledges that the information before the delegate at the decision time indicated that the applicant had to complete 16 units and not nine as later amended. ACVS advised the Tribunal that the course requirements were changed during the applicant’s studies at the College. The College has confirmed that the applicant’s academic progress would have been considered satisfactory in the circumstances. The Tribunal found the applicant’s evidence in relation to the course in which she was enrolled at ACVS to be vague and lacking in significant details. However, the Tribunal gives weight to the corroborative evidence provided indicating that the course required the completion of nine units and not 16 and that the completion of the number of units by the applicant is considered satisfactory. Consequently, the Tribunal finds that the applicant progress was satisfactory and in accordance with the College’s expectations. In relation to the applicant’s attendance, the applicant insisted that the 40% rate is incorrect and on the basis of the available information, the Tribunal cannot make a definitive finding about the applicant’s actual attendance rate. The Tribunal however accepts as plausible that the College did not record the attendance rate in a reliable manner and consequently the Tribunal is not satisfied that the applicant’s attendance rate was 40%.

24. 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 progress was unsatisfactory. However, the applicant has provided documentary evidence to the Tribunal, which the Tribunal accepts, that she has progressed in a satisfactory manner. The Tribunal notes that the applicant is currently enrolled in a course of study which she intends to complete at the end of June 2016.

25. The Tribunal acknowledges that the applicant has had a somewhat turbulent history as a student however on balance and in consideration of the evidence as a whole, the Tribunal is satisfied that the applicant is a genuine student.

26. 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.

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

    DECISION

28. 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.