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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1516568 (Migration)

Details

AGLC: 1516568 (Migration) [2016] AATA 4436
Case: [2016] AATA 4436
Decision Date: 9 September 2016

CaseChat Overview and Summary

This matter concerned an applicant whose student visa was cancelled by the Department. The applicant sought review of this decision before the Tribunal. The core of the dispute revolved around whether the applicant had breached condition 8202 of the Migration Regulations 1994, which mandates satisfactory course progress and attendance for overseas students.

The Tribunal was required to determine if the applicant had complied with condition 8202 of the Migration Regulations 1994. Specifically, the Tribunal had to ascertain whether the applicant's education provider had certified them as not achieving satisfactory course attendance, as stipulated by regulation 8202(3)(b) and referenced under section 19 of the Education Services for Overseas Students Act 2000 and standard 11 of the National Code. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had not complied with condition 8202(3)(b) because their education provider had certified them as not achieving satisfactory course attendance. The Tribunal considered the applicant's submissions regarding the perceived inadequacies of the education provider's management systems and student support. However, the Tribunal was not satisfied that the circumstances leading to the cancellation were beyond the applicant's control, nor did it find a compelling need for the applicant to remain in Australia. Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 ThwaitesMember 9 September 2016ATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

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.