1516110 (Migration)

[2016] AATA 3556

1516110 (Migration) [2016] AATA 3556 (17 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Raden Cecep Lukman Yasin
Mrs Rahmawati Baharuddin
Miss Afifah Kusuma Ningrum

CASE NUMBER:  1516110

DIBP REFERENCE(S):  BCC2015/1108381

MEMBER:George Haddad

DATE:17 March 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 574 Postgraduate Research Sector visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 17 March 2016 at 5:10pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 November 2015 made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 574 Postgraduate Research Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the first named applicant (or the applicant) was not enrolled in a registered course since 16 September 2014; therefore did not comply with Condition 8202 of his student visa. 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 other visa were 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. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The applicant appeared before the Tribunal on 17 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Professor Greg Barton. .

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. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The delegate made the decision on 16 November 2015 finding that the applicant was not enrolled since 16 September 2014, a period of more than one year. The delegate relied on information from the database known as PRISMS (Provider Registration and International Students Management System). However, the applicant has provided evidence from Monash University, his education provider which identifies two periods during which the applicant was not enrolled one of a few weeks between Late November 2013 and mid January 2014; and the other is of a period of around 4 months between 16 September 2014 and 19 January 2015; for this period Monash University does not state that the enrolment was cancelled, it uses different language “invalidated”. The letter from Monash University confirms that on both occasions the enrolment was cancelled for non-payment of fees and once fees were paid enrolment was reinstated. The letter recognises that due to an administrative error the certificate of enrolment was not created on PRISMS after payment was received in January 2015. This oversight led to the delegate relying on information which now appears to be incorrect, in part.

9. At the hearing the applicant at first argued that there was no ground for the cancellation as the delegate had made the decision based on incorrect information due to an oversight by Monash University to update the record on PRISMS and issue the certificate of enrolment.

10. I did not accept this submission as I considered the period of around four months between September 2014 and January 2015 to be a significant period of non-enrolment and put to the applicant that I consider this to be breach of Condition 8202, therefore the ground exists. The applicant continued to argue that in his view, because the fees were ultimately paid and enrolment reinstated he demonstrated that he was genuinely studying and therefore there was no breach. After a short discussion the applicant accepted that, even if the first period of around 6 weeks were not to be considered, the second period of 4 months without enrolment can reasonably be taken as non compliance with condition 8202.

11. I am satisfied therefore, based on evidence the applicant provided, the letter from Monash University, that two periods of time while the applicant held a student visa subject to Condition 8202, notably the second period of four months the applicant was not enrolled in a registered course, so he breached Condition 8202 and therefore the ground in s.116(1)(b) exists.

    Consideration of the discretion to cancel the visa

12. Having found that the ground for cancellation exists, the Tribunal must consider whether to exercise its discretion to cancel the visa.

13. 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).

14. The PAM 3 lists a number of factors to consider and I agree that they are relevant to take into account. Of course I am not limited to these factors and as will soon be discussed I have also taken other factors the applicant put forward.

    The purpose of the applicant’s  travel and stay in Australia

15. In short the purpose was to study at Monash University a PhD in the Department of Social and Political Sciences, Faculty of Arts.

    The significance of the non compliance with visa conditions

16. The non compliance is only in relation to Condition 8202 of the applicant’s visa. There is no evidence or suggestion that the applicant has not complied with the other conditions of his visa. The significance of non compliance with Condition 8202 is, in my view, considerably different from how it appeared to the delegate. The delegate’s decision relied on information contained in PRISMS, a database maintained by the education department which places obligations on education providers to supply and update information relating to overseas students. That the delegate relied on PRISMS is common, unremarkable and not wrong. The information identified a period of more than one year of non enrolment. This is very significant and in the absence of satisfactory explanation, it would be difficult for an applicant to persuade the discretion to be exercised. However, occasionally the information in PRISMS is found to be inaccurate and this is such a case. The letter from Monash University, which I have accepted. Materially changes the circumstances now before the Tribunal. This is not to say that four months of non enrolment is not significant, it is and I have indicated this to be my view. The reasons for the periods of non enrolment – non payment of fees, also gave me concern and I asked the applicant to indicate how he could ensure that he would not again find himself unable to pay the fees when they become due.

    The circumstances in which the ground for cancellation arose

17. As noted above, the reason the applicant failed to comply with Condition 8202 on the two occasions his enrolment was cancelled was because of non payment of fees.

18. The applicant explained that he is funded by the Indonesian government to study the PhD. He said he holds a position as lecturer at the Islamic State University. The Department of Religious Affairs pays his tuition fees and provides him a monthly stipend to meet his and his family’s living expenses. He said the Indonesian government  has an ongoing program of upgrading the skills and qualifications of government employed lecturers and funds several around the world.

    The degree of hardship that may be caused to the applicant and his family

19. The applicant stated that he has been in Australia for three years studying on a government scholarship. He has one year to complete the program. If his visa remains cancelled and he is unable to complete the course, it would cause significant hardship as he would be seen as having wasted the time, money and opportunity expected of him by his employer, the Indonesian government. The applicant came here with his wife and daughter. His daughter has commenced year 7 at the start of 2016 and her education would be disrupted. The applicant’s wife has returned to Indonesia. She too is employed by the Indonesian government as a lecturer and the leave she was granted had expired and she had to return.

    Other factors, evidence from the applicant’s academic supervisor

20. The applicant requested that I take evidence from his supervisor, Professor Greg Barton. I called Prof. Barton by telephone. He told me that he moved Monash University to Deakin University late last year and as he has been the applicant’s supervisor he told the applicant that if he wished to continue the program with him, he could apply to finsih the program at Deakin. He said the applicant is making good progress in his course. The applicant chose to move to Deakin and was recently offered a confirmed place at Deakin to complete his program by 14 January 2017. He provided to the Tribunal a copy of his certificate of enrolment.

21. Relevantly, Prof. Barton gave evidence stating that he is very familiar with the Indonesian government scholarship program and that late payment of tuition fees is very common. He added that it is a matter that is beyond the control of the students on these scholarship programs.

22. Taking all of the above into account, I am satisfied that while the period of non enrolment is significant, the circumstances of the present case which led to the breach were beyond the control of the applicant. Additionally, the applicant stated that the absence of formal enrolment did not disrupt his studies because as the PhD program is by research he was able to continue informally to research and maintain progress at home and at the library. In this respect the non enrolment had less impact on his progress and also led him to not consider it to be of much significance. The cancellation of his visa has crystallised to him the importance of compliance with Australian migration law and said that he has asked his wife to seek to arrange the payment of the remaining tuition fees to complete his program and to do so as soon as possible. He does not wish to risk a repeat cancellation of his enrolment. I am satisfied too that the applicant is a genuine student. This is a factor in my view that is relevant to the consideration of exercising discretion to cancel a student visa. I have also concluded that the hardship that would be caused to the applicant and his family members would be significant and in the circumstances of this case the consequences unreasonably  harsh.

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

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 574 Postgraduate Research Sector visa. The Tribunal has no jurisdiction with respect to the other applicants

    George Haddad
    Senior 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.