1510860 (Migration)

[2015] AATA 3593

1510860 (Migration) [2015] AATA 3593 (9 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arnun Sangobphai

CASE NUMBER:  1510860

DIBP REFERENCE(S):  BCC2015/953532

SENIOR MEMBER:  Antoinette Younes

DATE:9 November 2015

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 09 November 2015 at 2:47pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 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 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. The applicant appeared before the Tribunal on 3 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   JURISDICTION ISSUE

5. Initially this application for review appeared to be invalid as it was lodged out of time. The time limit for this type of review is seven working days from the day on which the applicant is taken to have been notified of the primary decision.  The primary decision was emailed to the applicant on 14 July 2015, which means that the 14 July 2015 was the date on which the applicant is taken to have been notified. Consequently, 23 July 2015 was the last day for lodging the application for review. The application for review was received on 10 August 2015.

6. On further examination by the Tribunal, it became evident that the Department had sent the primary decision (and the Notice of Intention to Consider Cancellation) to an older email address when a more recent email address had been provided to the Department. This was confirmed by the Department on 7 October 2015.

7. On the basis of the available information, the Tribunal is satisfied that the applicant was not notified in accordance with the regulations (reg. 2.55(3)(d)). In those circumstances, the Tribunal is satisfied that it has jurisdiction to determine the review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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?

9. 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.

10. 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]).

11. 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.

12. In the decision record provided by the applicant to the Tribunal, it is noted that:

    a.On 19 January 2015, the applicant commenced his study at the Australian College of vocational studies Pty Ltd (ACVS).

    b.On 9 March 2015, an officer from the Department requested the applicant’s study records from ACVS and that ACVS provided the applicant’s attendance records, his written assessment and academic transcript. The documents provided indicate that the applicant’s average attendance is around 34% and that since he commenced the course on 90 January 2015, he did not complete any unit out of the 18 units.

    c.The delegate concluded that the applicant’s average attendance is around 34% and that he did not complete any unit since he commenced his course. Consequently, it appeared that his primary purpose for holding a student visa is not for the purpose of study.

13. On the basis of that information, the delegate decided that the applicant is not, or is likely not to be, a genuine student.

14. In the course of the hearing, the Tribunal discussed with the applicant the information that led to the cancellation of his visa as noted in the decision record. The applicant stated that his current attendance is over 80% and that he went to the College every day. He said when he was sick, he provided medical certificates relating to allergies. The Tribunal asked the applicant if he had copies of those medical certificates and the applicant confirmed that he does not.

15. In accordance with s.359AA, the Tribunal discussed with the applicant the specific information provided to the Department by ACVS which demonstrates that his attendance rate was about 34% and that at the time the document was printed which was 22 March 2015, he had not completed any units. The Tribunal invited the applicant to comment on or respond to that information. The applicant stated that he had submitted all of his assignments that there was a regular change of teaching staff and it would appear and that the teachers had failed to forward assignments to relevant assessment teachers. The applicant’s representative requested time to provide further submissions in relation to that issue.

16. In the course of the hearing, the applicant provided to the Tribunal a document dated 3 November 2015 from ACVS showing that the applicant’s attendance in the course of the Certificate III in Tourism from 19 January 2015 until 4 December 2015, is 82%. The applicant stated that he has so far completed over 20 units and that he would be providing evidence to support his completion of those units.

17. Subsequent to the hearing, the applicant provided to the Tribunal a transcript of academic record dated 4 November 2015 from ACVS in relation to the course of the Certificate III in Tourism showing that the applicant has competently completed 12 units and that there are four units awaiting completion, and a letter from ACVS dated 26 March 2015 in relation to the Student Management System undergoing maintenance. He also provided a number of Confirmation of Enrolments in various courses, including Certificate IV Travel and Tourism commencing 18 January 2016 until 18 June 2016, Diploma of Travel and Tourism commencing 5 July 2016 until 7 June 2017, Advanced Diploma of Travel and Tourism commencing 4 July 2017 until 16 June 2018.

18. The evidence before the Tribunal indicates that the applicant’s attendance rate in the course of Certificate III in Tourism from 19 January 2015 until 3 November 2015, is 82% and that he has competently completed 12 units. The evidence also shows that the applicant has plans for future studies. 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, and is likely to be a genuine student. 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.

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

    DECISION

20. 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.