1516568 (Migration) - [2016] AATA 4436

1516568 (Migration) [2016] AATA 4436 (9 September 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss THI HA TRAN
CASE NUMBER:  1516568
DIBP REFERENCE(S):  BCC2015/1778101
MEMBER:Chris Thwaites
DATE:9 September 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 09 September 2016 at 8:51am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 25 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).
The delegate cancelled the visa on the basis that TK Melbourne Education & Training College had certified the applicant was not achieving satisfactory course attendance in relation to Certificate IV in EAL (Access) [084208M], therefore the applicant had failed to meet the requirements of subclause 8202(3) and had breached condition 8202.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 1 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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?
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).
In the present case, the applicant’s visa was cancelled on the basis that the education provider for the course being undertaken by the applicant, had certified the applicant as not achieving satisfactory course attendance for s.19 of the Education Services for Overseas Students Act 2000 (the ESOS Act), and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code).
For this requirement, it is the certification by the education provider as to breach of its attendance policies that constitutes the breach of condition, and not the unsatisfactory attendance itself: Maan v MIAC (2009) 179 FCR 581 at [44]-[45].
The applicant’s representative provided a written submission and copies of a number of documents relating to the applicant’s studies. In summary, the submission outlines the applicant’s background and academic history. The submission notes the applicant arrived in Australia on 26 September 2013 and began studying English at Swinburne University from October 2013 to June 2014. During this period the applicant moved to the home of her cousin, later clarified by the applicant as the home of her aunt, and for location/convenience sake changed schools. The applicant started a Certificate III in EAL and Certificate IV in EAL with TK Melbourne from 25 August 2014. The applicant successfully completed Certificate III in EAL on 26 November 2015 and partially completed Certificate IV in EAL in April 2016 just before her study rights on her bridging visa expired in May.
The written submission notes the applicant had only been distributed a Student Handbook this year, and notes the Handbook makes no mention about the requirements and procedures for unsatisfactory attendance. The representative submits this omission is in breach of the National Code Standard 11 requiring providers to have appropriate documented policies and procedures for monitoring attendance for each course. The submission states TK Melbourne had a very messy and unorganised internal management system. The applicant enrolled in the English course in 2014 and there was a lack of support from the College and the staff turnover was extremely high. It submits it was hard to talk to the student support staff and get the attendance report on a regular basis.
The written submission states the applicant did not receive any notification about her attendance breach, and the applicant had been offered to continue her course and requested to pay extra tuition to the college.
The written submission states the applicant was not aware of the Department’s intention to consider cancellation letter and hence didn’t respond. The applicant was unable to access any of her attendance and progress records from TK Melbourne because it has been deregistered this year due to severe compliance issues. A copy of a Sydney Morning Herald report noting that TK Melbourne was found to be in “critical non-compliance” with national standards in August 2015 was attached to the submission.
The written submission states the applicant is financially supported by her family and her younger sister is studying a degree course in Vietnam. She has a cousin and aunt in Australia. Her aunt is a factory worker and her cousin is a primary school teacher.
The written submission states the applicant wants to complete her Certificate IV in EAL and enrol in a diploma course majoring in Business as a pathway to a Bachelor of Business. The applicant would like to pursue a career in the marketing and banking industry. It is submitted that the Australian banks are growing in Vietnam, especially the ANZ. At the moment the ANZ has two offices in Vietnam and the applicant wishes to complete her degree in Australia and hopefully join the bank’s branches in Vietnam.
The written submission concludes that when all the facts of this case are considered, the applicant should have her visa reinstated so she can pursue her studies in Australia. She has made all the attempts she could to comply with her visa conditions and as an international education consumer in Australia she has unfortunately experienced the incompliant education provider. It is submitted that the applicant is a genuine student with a desirable career goal and she deserves another chance to continue her studies in Australia and also gain a more pleasant Australian study experience.
During the hearing the representative provided a copy of the TK Melbourne Student Handbook 2016, and copies of a number of receipts for payments to the education provider and Statements of Results, and a letter dated 13 August 2015 confirming the applicant’s course enrolment in Certificate III in EAL at TK Melbourne Education and Training College which commenced on 3 August 2015. The representative also provided a copy of a letter dated 26 April 2016 from TK Melbourne Education and Training College certifying the applicant successfully completed the Certificate III in EAL and qualified on 26 November 2015. The representative also provided a copy of a Statement of Attainment from TK Melbourne dated 2 February 2016 and a copy of a Statement of Attainment from Central Victoria Polytechnic Institute dated 26 April 2016.
During the hearing the Tribunal spoke to the applicant about where she had lived and studied in Australia. She told the Tribunal she initially lived in a homestay arrangement and studied at Swinburne University, and then moved to her aunt’s home in Sunshine North and attended TK Melbourne and she was now living with her boyfriend in St Albans and had recently completed some of her Certificate IV in EAL, before she was no longer allowed to study due to her visa.
The applicant told the Tribunal that she had arrived in Australia on 26 September 2013 as a student to study and understood she was required to study while she was in Australia and that she did so. The applicant told the Tribunal that she attended classes and completed all the home work required. The applicant told the Tribunal that when she attended her classes she signed in at the reception area and then with the teacher. She told the Tribunal she had to undertake her Certificate III a number of times but she has now completed it and she was studying her Certificate IV prior to losing her right to study.
On questioning the applicant told the Tribunal she did not receive any warning letters or notices from TK Melbourne or the Department before she received the letter notifying her that her visa had been cancelled. The applicant told the Tribunal she believes she had attended all the classes she was required to attend, and was not made aware of any attendance problem, and she wishes to continue her studies in Australia.
The representative submitted TK Melbourne had not complied with the National Code Standards and noted the Student Handbook did not make any mention of the requirement to achieve 80% average attendance, and therefore TK Melbourne’s certification that the applicant had not achieved satisfactory course attendance was invalid.
In accordance with s.359AA the Tribunal put information from the Departmental file to the applicant. The Tribunal noted TK Melbourne had provided the Department with attendance records as well as copies of a Student Attendance 2^nd Warning letter dated 22 November 2014, and a Student Attendance Breach Report Letter dated 25 February 2015. The Tribunal also noted the copy of the departmental Notice of intention to consider cancellation of Student (Temporary) (Class TU) Higher Education Sector (subclass of 573) visa under section s116 (General Power) of the Migration Act 1958 dated 27 October 2015. The Tribunal noted the information was different to the applicant’s oral evidence, that she had attended all her classes and had not been notified of any concerns in relation to her attendance, or the intention to consider cancelling her visa, until she received the letter informing her that her visa had been cancelled. The Tribunal noted the letters and the Notice of intention were all addressed to the applicant at the addresses she had earlier told the Tribunal she had lived at during the relevant times.
The applicant chose to respond immediately and told the Tribunal that she knew when she was granted the Student visa that she was required to study and had studied two days a week and signed in twice each time, once at the reception and once with the teacher. She told the Tribunal she did attend and did complete her home work as well and that she had provided documents to her agent.
The representative noted the Student Attendance Breach Report Letter indicated the applicant had not provided substantial evidence in regards to the absences during the period, hence the appeal made within 20 working days’ time period given to access the internal complaints and appeals process has not been granted. The representative noted that as far as she knew the applicant had not made such an appeal.
While the Tribunal has taken into consideration the applicant’s response and the representative’s oral submissions, on the basis of the documents noted above, the Tribunal is satisfied TK Melbourne Education & Training College did write a warning letter to the applicant on 22 November 2014 noting that the attendance records indicated that her current projected attendance would be at risk of falling below the minimum 80% average attendance required for the holders of Student visas, and asking the applicant to contact the RTO to arrange a meeting with the academic manager. The Tribunal is satisfied TK Melbourne Education & Training College wrote a Student Attendance Breach Reported letter to the applicant on 25 February 2015. The Tribunal is satisfied these letters were addressed to the applicant’s correct address at the relevant time. The Tribunal is also satisfied the Department sent the Notice of intention to consider cancellation of student (Temporary) (Class TU) Higher Education Sector (subclass of 573) visa under section s116 (General Power) of the Migration Act 1958 to the applicant at her current address on 27 October 2015. Given these letters were all addressed to the applicant’s mailing address at the relevant time, the Tribunal does not accept the applicant’s oral evidence that she did not receive them and was therefore unaware of the issues raised in the letters.
While the Tribunal has considered the representative’s submission in relation to TK Melbourne Education & Training College’s compliance with the National Code Standards, the Tribunal does not accept any non-compliance by TK Melbourne in relation to the National Code Standards affects the validity of the certification by TK Melbourne that the applicant was not achieving satisfactory course attendance[1].
[1] Mo v MIAC [2009] FMCA 1026 (Raphael FM, 23 October 2009), Singh v MIAC [2009] FMCA 1261 (Raphael FM, 14 December 2009), Mazumder v MIAC [2010] FMCA 76 (Cameron FM, 12 February 2010), Patel v MIAC [2011] FMCA 112 (Burnett FM, 2 March 2011) (upheld on appeal), Luo v MIAC [2011] FMCA 160 (Barnes FM, 16 March 2011).
As noted in the delegate’s decision record, a copy of which the applicant provided to the Tribunal, the education provider has certified the applicant as not achieving satisfactory course attendance within the terms of condition 8202(3)(b), therefore the Tribunal finds the applicant has not complied with condition 8202(3).
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.
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).
The Tribunal has taken into account the applicant’s oral evidence that she first arrived in Australia in September 2013, and has undertaken the Certificate III in EAL a number of times and completed that certificate in November 2015, and had begun the Certificate IV in EAL prior to losing her right to study. This information is consistent with the documents the applicant provided in relation to her studies. The Tribunal has also taken into consideration the applicant’s wish to continue to study in Australia and eventually pursue a career in the marketing and banking industry, possible with an Australian bank in Vietnam. The Tribunal has also taken into account the submissions in relation to the inadequacies of TK Melbourne’s management system, student services and the Student Handbook. While the Handbook does not state the requirement to achieve 80% average attendance, the Tribunal notes the document does set out the student obligations to maintain a full time study load and attend class 20 hours a week. As noted above, the Tribunal does not accept the applicant did not receive the letters from TK Melbourne or the Department, and on the evidence before it the Tribunal is not satisfied the circumstances which led to the visa being cancelled were beyond the control of the applicant.
While the Tribunal accepts the applicant’s family financially supporter her, and the Tribunal accepts that the applicant and her family will be upset if she was unable to continue to study in Australia, the Tribunal also notes the applicant’s immediate family remain in Vietnam and her sister is studying a degree course in that country. The Tribunal considers the applicant’s family will continue to support her on return to Vietnam, and the applicant and her family members are not likely to face any significant degree of financial, psychological, emotional or other hardship if her visa is cancelled. On the evidence before it the Tribunal does not accept the applicant has a compelling need to remain in Australia.
The Tribunal is not aware of the applicant having any issues with the Department and on the information before the Tribunal there is nothing to indicate there are persons in Australia whose visas would be affected by the cancellation of the visa. There are no issues arising in respect of Australia’s obligations under relevant international agreements that have been identified in this matter.
The applicant is currently on a bridging visa, and therefore the cancellation of her student visa will not directly lead to her becoming an unlawful citizen. Whilst the applicant may eventually become an unlawful non-citizen and liable for detention and removal, the Tribunal gives this factor only limited weight in her favour and finds it does not outweigh other factors that point to the cancellation of the visa. The Tribunal is not satisfied, on the evidence before it, that indefinite detention is a possible consequence of the cancellation decision because she cannot be removed from Australia consistently with Australia's non-refoulement obligations.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Chris Thwaites
Member 9 September 2016

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.