1511631 (Migration)

[2016] AATA 3856

1511631 (Migration) [2016] AATA 3856 (5 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Le Tien Trung Tran

CASE NUMBER:  1511631

DIBP REFERENCE(S):  BCC2015/1078859

MEMBER:David McCulloch

DATE:5 May 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 573 Higher Education Sector visa.

Statement made on 05 May 2016 at 3:42pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 August 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Vietnam born on 15 March 1990.  The visa subject to cancellation was granted on 20 February 2014.

3. On 20 April 2015 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Act. The applicant provided his response to the NOICC on 21 April 2015. On 21 August 2015 the delegate decided to cancel the student visa held by the applicant under s.116(1)(fa) of the Act because the delegate formed the view that the applicant was not a genuine student.

4. The applicant sought review of that decision. The issues that arise on review are:

   1. Does the ground for cancellation exist?
   2. If so, should the visa be cancelled?

5. The applicant appeared before the Tribunal on 28 April 2016 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent.

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

   Relevant law             

8. Under s.116(1) 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, as set out in the departmental guidelines, Procedures Advice Manual (PAM3).

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 with lecturers, 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:

    …

    (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.

12. 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

13. There is nothing before the Tribunal to indicate that the applicant’s participation in the course had been deferred or temporarily suspended by the provider of the course.

14. When making the application for review, the applicant provided to the Tribunal a copy of the primary decision record. It indicates the following.

15. On 29 September 2014 the applicant commenced study at Australian College of Vocational Studies Pty Ltd (ACVS) trading as Vocational Study Australia. On 9 March 2015 the Department requested study records from ACVS and they submitted written assessments and academic transcripts. Those documents indicated that since the applicant commenced the course on 29 September 2014 he had completed 1/24 units and had average attendance of around 36 per cent. It was also indicated that a substantial proportion of his written work was reviewed and demonstrated that a significant proportion was identical to that of a number of other students within the class.

16. On the basis of that information the delegate concluded that it appeared that the primary purpose for the applicant holding a Student visa is not the purpose of study. It was indicated that it appeared that the applicant was not, or was not likely to be, a genuine student.

17. The applicant provided a written response to the NOICC which indicated the following. The applicant indicated that the total hours that he need to attend from 29 September 2014 until 18 March 2015 was 340 hours. This comprised a total of 20 hours per week, being Monday and Tuesday from 9 am to 5 pm and Wednesday from 9 am until 1 pm. The applicant indicated that there were medical reasons for almost all of his days absent. Medical Certificates are provided, all from Dr BM Pham, which cover 25 days of classes. The applicant indicated that he was absent for only 55 hours without medical reason. This makes the applicant’s attendance o83.5 per cent, not 36.5 per cent.

18. Regarding the applicant’s academic record, he needed to pass 24 subjects in the two years of study until September 2016. The applicant indicated that it has been two terms from 29 September 2014 and he had passed one subject and had not yet finished another five subjects. The applicant indicated that he could redo the tests and assignments for the five subjects in the near future. For the remaining subjects, the applicant will study in subsequent semesters. ‘NYC’ on the transcript does not mean that the applicant has failed, it means that these courses will be studied in the future. The applicant indicated that the school mentioned that other students have had this problem. The applicant indicated that his medical problems since October 2014 prevented him from studying and doing the assignments. The applicant asked to be allowed to continue his studies at ACVS and to complete the course.

19. The applicant provided to the Tribunal in advance of the hearing documents from ACVS relating to his studies. A statement is provided indicating that the applicant has been studying the Advanced Diploma of Hospitality since 29 September 2014 and will finish on 8 September 2017 and that his attendance rate to date is 84 per cent. Provided is a transcript of the Advanced Diploma of Hospitality indicating a start date of 28 September 2015 and showing a total of 32 units. It indicates that 21 units have been deemed as Competent. Nine units are designated as Not Yet Delivered. Three units are designated as Did not Attempt.

20. The Tribunal accepts that the applicant has provided medical certificates to the Tribunal which supports his attendance being 83.5 per cent for the relevant period, not 36.5 per cent. Attendance at around the level claimed by the applicant is consistent with the recent statement of attendance provided by ACVS. 

21. The Tribunal notes that the applicant ceased his studies of the Advanced Diploma of Hospitality on 22 July 2015 but then re-enrolled on 28 September 2015. The applicant indicated in the hearing that up until leaving the course for the first time in July 2015, he only passed one unit. The applicant indicated that this was due to a combination of his illnesses and because he struggled with the units.

22. It is clear to the Tribunal from the transcript that has been provided from ACVS relating to the recommenced course on 28 September 2015, that the applicant has been making good progress, with 21/32 units passed. Even accounting for the fact that the applicant has effectively extended the period of the course by one year, he is making reasonable progress. The Tribunal considers that this tends to support the applicant’s claim that he is a genuine student, notwithstanding difficulties from September 2014 until July 2015.

23. The Tribunal is not prepared to draw an adverse inference from the Departmental assertion that the applicant’s recent work is substantially the same as other students. There is no information on the Departmental file which establishes how that judgement has been arrived at.

24. In terms of the applicant’s study history in Australia, he has been in Australia since early 2007 when he studied at senior high school level before undertaking and completing a number of courses including a prior Advanced Diploma of Hospitality, a Certificate IV in Business, a Diploma of Management and a General English course, before commencing the current Advanced Diploma of Hospitality.  The applicant’s solid history of study over many years in Australia tends to support the proposition that the difficulties from September 2014 until July 2015 were a lapse and explicable due to health issues.

25. In all the circumstances, the Tribunal is satisfied that the applicant has conducted himself as a genuine student during his time in Australia, including during the period of the study of the current Advanced Diploma of Hospitality. The Tribunal considers that the information that the delegate based the decision on relating to attendance was not accurate, in that is did not take into account days of absence where the applicant was sick with medical certificates. The applicant is currently studying and is making reasonable progress. The applicant has a long history of studying in Australia. The Tribunal is satisfied that the applicant is likely to be a genuine student in the future, based on his past conduct.

26. Considering all the evidence, the Tribunal is not satisfied that the applicant is not or is likely not to be a genuine student.

27. 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 under this provision does not arise.

    Condition 8516 and cl.573.231

28. The applicant has failed to meet condition 8516 in not being a person who would satisfy the primary criteria for the grant of the visa which, pursuant to cl.573.231, requires him to be enrolled in, or subject to an offer of enrolment in, a course of study that is a principal course of the type specified for the subclass 573 visa as specified by the Minister in an instrument. The Advanced Diploma of Hospitality is not such a course. Following the hearing, the applicant provided to the Tribunal evidence of subsequent enrolment in a Degree course.

29. Given that a breach of 8516 was not the ground relied on by the delegate, the Tribunal is not intending to make a finding on that basis in this case. It notes that the applicant is now enrolled in a course as required by his visa. Whilst the Tribunal has some scepticism about the genuineness of the applicant’s intentions to study this course, it does accept that the applicant has been and is a genuine student. If the applicant does not intend to undertake the higher education course, he will have the ability to apply for a visa appropriate to his intended study when the current visa is reinstated. The Tribunal notes that if the applicant ceases to be enrolled in a  course as required pursuant to the current visa, then that would provide a basis for the Department to cancel the visa a second time.

    DECISION

30. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    David McCulloch
    Member