1513093 (Migration)

[2016] AATA 3942

1513093 (Migration) [2016] AATA 3942 (1 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss SIMRAN OCTIAN

CASE NUMBER:  1513093

DIBP REFERENCE(S):  BCC2015/1658591

MEMBER:Christine Kannis

DATE:1 June 2016

PLACE OF DECISION:  Perth

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 01 June 2016 at 8:42am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 September 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 17 May 2016 to give evidence and present arguments. 

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. Relevant to this case, these include the ground set out in s.116 (1) (b). 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. On 5 March 2012 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202 (2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

7. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant’s enrolment in a registered course (Bachelor of Engineering) was cancelled on 12 August 2014 and she has not been enrolled in another registered course since that date.

8. The applicant’s evidence to the Tribunal included that she is currently enrolled in a registered course. Following the hearing the Tribunal made independent enquiries of the applicant’s education provider, Perth Institute of Business and Technology (PIBT) with respect to the applicant’s enrolment status in 2015 and 2016. PIBT advised that the applicant enrolled in a registered course on 12 October 2015 and remains enrolled.

9. Having regard to the information on PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 12 August 2014. The Tribunal finds that she breached condition8202(2)(a) of her visa.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116 (1) (b) exists. As that ground does not require mandatory cancellation under s.116 (3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

11. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

12. On 31 August 2015 the Department of Immigration and Border Protection (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she was considered to have not complied with condition 8202 (2)(a) of her visa, as she ceased to be enrolled in a registered course. 

13. In her response to the NOICC, received on 7 September 2015, the applicant provided the following information:

    ·Her health problems affected her studies and her general well-being. She suffered from chronic sinus and 80% of her nasal cavity was blocked and this meant that some days half her face was swollen and she could not attend school. She tried medications prescribed by her doctor but they did not provide relief. An image of a Medical Certificate from Dr Lingam Sam was provided which indicated she was unfit for “work/school/exam” from 2 April 2014 to 15 May 2014 due to severe chronic sinus.

    ·Her parents advised her to travel to India for herbal medicine treatment, which she did from 6 to 21 August 2014. She advised PIBT and requested her studies be deferred. When she did not hear anything further from PIBT she assumed everything was fine and went ahead with her trip to India.

    ·When she returned from India she tried to enrol on the PIBT website for trimester 3- 2014 (commencing in October). She was unable to access the self- enrolment tool and so she attended and was advised to fill out a form indicating the units she wished to undertake and requesting a transfer of fees for the semester. After that she received a number of emails which confused her about what was going on and whether she would be able to continue her studies in October 2014.

    ·She did not seek help from her family because she was embarrassed. She felt scared and isolated and there was no one from who she could guidance. She also tried to enrol online for the trimester 1-2015 commencing in January 2015 but was unsuccessful.

    ·Her family was going through hardship at that time because her grandmother passed away on 27 January 2015.

    ·She will be a disappointment to her family if she loses her visa and many people have put in effort and resources to help her.

    ·She tried to apply at a few colleges in Perth for a few months in early 2015 but had no success because admission centres told her she had to change her visa to study a course at those colleges.

    ·It was not until recently that she sought guidance from universities about what to do in her situation. It then became clear that she could not get into an engineering course and she became aware that needed to be enrolled in a packaged course that offers a Bachelors program to continue on her current student visa. She realised that she could have asked for guidance before but she was afraid of the humiliation.

14. Prior to the hearing the applicant provided a bundle of documents which included two Confirmations of Enrolment,  two Enrolment Receipts from PIBT,  two letters from the her lecturers and a Statutory Declaration made by her friend, Sarah Daphne Harbottle, on 17 May 2016.

15. The applicant told the Tribunal she did not deliberately cease to be enrolled in a registered course. She has reflected on her mistake and realises how foolish she has been.

16. The applicant said she chose to study engineering on her parents’ advice and because her grades were good. She said initially she coped with her studies in Australia however after some time her grades fell and she was concerned that she would be reported by PIBT to the Department for her poor academic performance. She was also suffering from a sinus condition and this contributed to her poor performance.

17. The applicant said after completing trimester 1- 2014, she decided to return to India for medical treatment for her sinus condition in early August 2014. Her mother was also having surgery and so she would be able to help her mother during her recuperation.

18. The applicant told the Tribunal she decided not to enrol in trimester 2-2014 (commencing in June) and she advised PIBT of her decision. She did not hear from PIBT before leaving for India and did not understand the consequences of not enrolling. The applicant said she did not discuss her decision not to enrol with anyone. She did not discuss that she was struggling with her studies with anyone.

19. The applicant said that after she returned from India she attempted to enrol in trimester 3- 2014, (commencing in October). There was email evidence on the Department’s file and in the applicant’s response to the NOICC demonstrating her unsuccessful attempts to enrol.

20. The applicant said she attempted to enrol in trimester 1-2015. She tried to enrol at Curtin University however she was refused due to her previous poor performance. She tried to enrol in other colleges in Perth, including Stanley College, but she was advised suitable pathway courses for her engineering studies were not offered at the colleges. She was also told that she needed to apply for a new visa.

21. The applicant told the Tribunal that after her unsuccessful attempts to enrol in a course in late 2014 and early 2015 she did not make any further attempts to enrol until she received the NOICC. When she received the NOICC she sought the assistance of a migration agent.  

22. At that time she was refused a place in the Bachelor of Engineering course at PIBT but she was offered a place in the Diploma of Business/ Bachelor of Business course.  She completed trimester 3 -2015 and has just completed trimester 1-2016. She will sit her exams in the last week of May 2016 and will then have completed her Diploma of Business. She is enrolled in the second year of her Bachelor of Business commencing in July 2016 and ending in July 2018. Her evidence in this regard was consistent with the information provided to the Tribunal by PIBT following the hearing.

23. The applicant said her business studies have included undertaking units in marketing and accounting and these are the areas in which she plans to work when she returns to India.

24. The Tribunal had regard to an email dated 16 May 2016 from Bradley Steffenssen, Course Coordinator & Lecturer-Business at PIBT. Mr Steffenssen said the applicant is a student in his class and that she has attended 10 out of 11 lectures this trimester and he referred to her good test results.

25. The Tribunal had regard to an unsigned letter from Willem van Tuil dated 21 May 2016. Mr van Tuil said the applicant was his student in the trimester 3-2015, that she had a near perfect attendance record and was a dedicated student.

26. The Tribunal had regard to Enrolment Receipts from PIBT for trimester 3-2015 and trimester 1-2016 and to the Confirmations of Enrolment issued on 21 September 2015 for the applicant’s enrolment in Diploma of Business/ Bachelor of Business course at PIBT.

27. The Tribunal had regard to Ms Harbottle’s Statutory Declaration in which she stated that she had seen the applicant work hard at her studies during the past two trimesters.

28. The applicant told the Tribunal that cancellation of her visa and having to return to India without completing her studies would be devastating for her, her family and her friends. She said they have invested money and resources into her education and she could not look them in the eye if she is “kicked out of school”. The applicant acknowledged her mistakes and said she had been too proud to tell anyone that she was struggling to cope.

29. The applicant said that since she sought help from a migration agent she has striven to get her life back on the right track and has studied for last eight or nine months because she is a genuine student.

30. The applicant is the eldest child in her family and is the first member of the family to study in Australia.

31. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the applicant’s response to the NOICC and in her evidence to the Tribunal.

32. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The Tribunal had regard to the fact that at the date of the delegate’s decision on 22 September 2015, a PRISMS search showed the applicant had not been enrolled in a registered course since 12 August 2014. The Tribunal noted that the applicant’s visa was granted for the purpose of undertaking her principal course of study being a Bachelor of Engineering and that PRISMS shows her enrolment in that course was cancelled on 12 August 2014.  She was not enrolled in a registered course again until 12 October 2015.

33. The Tribunal finds that the applicant’s breach of condition 8202 to be significant because she was not enrolled in a registered course for over 12 months from 12 August 2014 and was not fulfilling the purpose of her travel to and stay in Australia. The Tribunal considers the breach to be significant, given the central importance of enrolment to a student visa.

34. The Tribunal finds that more than 12 months elapsed between the applicant ceasing to be enrolled in a registered course and her receiving the NOICC. The Tribunal noted that the Confirmations of Enrolment provided prior to the hearing were dated 19 September 2015, 19 days after the applicant was issued with the NOICC. The Tribunal accepted the applicant’s evidence that she had been too proud to seek help with her visa until receipt of the NOICC.

35. When the applicant received the NOICC she rectified her enrolment status without undue delay.

36. In considering the reason for the breach the Tribunal accepted the applicant’s evidence that she was too proud to seek assistance to rectify her enrolment status. Her poor health and poor grades and relative youth are likely to have contributed to her failure to act.

37. The Tribunal had regard to the applicant’s subsequent enrolment in a registered course since 12 October 2015 and her completion of trimester 3-2015 and trimester 1-2016.

38. With respect to the degree of hardship, the applicant referred to her and her family’s emotional distress and financial loss if she is not able to pursue her study in Australia.

39. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

40. The Tribunal is satisfied that the applicant has a genuine intention of remaining enrolled in a registered course and completing her Bachelor of Business course.

41. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does no claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

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

    DECISION

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

    Christine Kannis
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.