1516148 (Migration)

[2016] AATA 4107

1516148 (Migration) [2016] AATA 4107 (11 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MUHAMMET SAFA TOPDAS

CASE NUMBER:  1516148

DIBP REFERENCE(S):  BCC2015/2083358 BCC2015/3581076

MEMBER:David McCulloch

DATE:11 July 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 11 July 2016 at 9:52am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 November 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 applicant is a national of Turkey born on 15 June 1994.  The visa subject to cancellation was granted on 10 September 2014. That visa was subject to condition 8202.

3. On 26 October 2015 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from 24 September 2014. No response was received to the NOICC.  On 17 November 2015, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

4. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. The applicant was invited to appear before the Tribunal on 27 June 2016 to give evidence and present arguments. The applicant did not appear at the time and place scheduled nor made any contact with the Tribunal about his non-appearance.

6. 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

7. The Tribunal finds that the hearing invitation was sent to the last address for service provided in connection with the review and in the circumstances, pursuant to section 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

8. 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?

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

10. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course.

11. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study since 24 September 2014.

12. There is nothing before the Tribunal to suggest that the applicant was a holder of a subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

13. The Tribunal file contains a file note from the Department of Immigration and Border Protection dated 13 March 2016 indicating that the Department had a letter provided by the applicant from the University of Western Sydney indicating that a mistake had been made in reporting the applicant as having ceased study. As a result, the Department waived the three-year exclusion period for the applicant in applying for certain visas pursuant to Public Interest Criterion 4013(1)(b)(i).

14. The Department determined that there were circumstances, including previous study history in Australia that show that the applicant has been a genuine student in Australia and that there is no evidence that he has actively or intentionally abused or sought to circumvent immigration laws.  Departmental systems indicate that the applicant was granted another TU-573 visa on 14 March 2016.

15. On the basis of this information, the Tribunal is satisfied that Departmental system showing that the applicant ceased to be enrolled in a registered course from 24 November 2014 (relied on by the delegate) did not accurately reflect that fact, and that the applicant did not cease to be enrolled in a registered course at that time.

16. On the evidence before the Tribunal, the applicant has not ceased to be enrolled in a registered course. Accordingly, the applicant has not failed to comply with condition 8202(2).

17. As a result, the ground of cancellation is not made out.

    DECISION

18. 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

    
    

    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.