1602862 (Migration)

[2016] AATA 4151

1602862 (Migration) [2016] AATA 4151 (19 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tshering Wangchuk

CASE NUMBER:  1602862

DIBP REFERENCE(S):  BCC2015/3468799

MEMBER:Christine Kannis

DATE:19 July 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 572 Vocational Education and Training Sector visa.

Statement made on 19 July 2016 at 2:48pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 March 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training 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. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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 10 June 2014 the applicant was granted a visa in Subclass 572 Vocational Education and Training 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 completed his Diploma of Business course on 10 July 2015 and was not been enrolled in another registered course until 22 February 2016.

8. Having regard to the information on PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 11 July 2015. The Tribunal finds that he breached condition8202(2)(a) of his visa.

9. 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

10. 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).

11. On 19 February  2015 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he was considered to have not complied with condition 8202(2)(a) of his visa, as he ceased to be enrolled in a registered course. 

12. In his response to the NOICC dated 24 February 2015 the applicant said he was ignorant of the requirement to maintain enrolment and said he finished his course in August 2015 and thought he was allowed a break after completing the course. He referred to his and his wife’s plan for him to complete a leadership management course and leave Australia as soon as he finished the course.

13. In an undated letter to the Tribunal the applicant referred to his attempts to re-enrol and to obtain a Confirmation of Enrolment after completion of his course in August 2015. He said he “thought it’s ok as long as I have reported to the college for enrolment”. The applicant said he did not intend to break Australian law and said his non-compliance with the condition of his visa was “totally innocent”.

14. The Tribunal had regard to copy emails between the applicant and his education provider, Stanley College, between June 2015 and January 2016. The emails show the applicant’s ongoing attempts to re-enrol during the period. The applicant also provided evidence of payment of tuition fees in December 2015 and January 2016.

15. In his undated letter the applicant said he is the father of two children “back home” and said his wife works full-time in the Ministry of Finance in Bhutan. He said he has no intention of staying in Australia and will return to his family and support them after completion of his studies. He said his wife secured an education loan to finance his study in Australia. He said his wife had previously studied in Western Australia and she wanted him to take the opportunity to study in Western Australia.

16. The Tribunal noted PRISMS indicates the applicant changed his chosen course of study from an Advanced Diploma of Management to an Advanced Diploma of Leadership and Management. This means that although the applicant completed some study, he did not complete the approved courses in line with the purpose of his visa. The Tribunal considered the courses to be sufficiently similar in nature when considering the purpose of the applicant’s visa.

17. PRISMS also shows that the applicant waited for six months before re-enrolling in a further course, with only three months validity left on his visa. This means that unless he is granted a visa extension, he will not be able to complete the requirements of the course for which he is currently enrolled and will therefore not achieve the purpose of his original travel to and stay in Australia. As noted, the evidence provided shows the applicant’s ongoing attempts to re-enrol during the period he was not enrolled in a registered course.

18. 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.

19. 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 the applicant was not enrolled in a registered course during the period from 11 July 2015 until 21 February 2016. The Tribunal noted that when the applicant received the NOICC he rectified his enrolment status without delay.

20. The Tribunal finds that the applicant’s non-enrolment for the period from 11 July 2015 until 21 February 2016 is a significant breach. The applicant however provided evidence of his continued attempts during that period to re-enrol and this was the context of his breach.

21. The Tribunal finds that the applicant is again fulfilling the purpose of his travel to and his stay in Australia because he is studying and is currently enrolled in a registered course. Regarding the six months during which he was not enrolled, from 11 July 2015 until 21 February 2016, the Tribunal was satisfied that the applicant continued to attempt to enrol in an appropriate course of study.

22. The Tribunal had regard to the applicant’s subsequent enrolment in a registered course since 22 February 2016 and payment of fees which support his contention that he has a genuine commitment to his studies.

23. There was no evidence before the Tribunal that hardship would be caused by cancellation of the applicant’s visa. 

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

25. 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.

26. The Tribunal is satisfied that the applicant has a genuine intention of remaining enrolled in a registered course and completing his study in a registered course.

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

    DECISION

28. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training 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.