1606434 (Migration)

[2016] AATA 4469

1606434 (Migration) [2016] AATA 4469 (1 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hau Tran

CASE NUMBER:  1606434

DIBP REFERENCE(S):  BCC2016/1362311

MEMBER:Christine Kannis

DATE:1 October 2016

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 01 October 2016 at 4:20pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 May 2016 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. On 13 April 2016 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. A response to the NOICC was received from the applicant’s migration agent (the NOICC response).

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. The applicant appeared before the Tribunal on 5 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.

6. The applicant was represented in relation to the review by his migration agent.

7. 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

8. 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?

9. On 3 March 2015 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8202 attached. Condition 8202 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.

10. Information from the Provider Registration and International Student Management System (PRISMS) shows the Perth Institute of Business and Technology (PIBT) cancelled the applicant’s enrolment for unsatisfactory attendance on 20 November 2015 and that he has not been enrolled in another registered course since that date.

11. The NOICC response confirmed that the applicant had not been enrolled in a registered course since November 2015 and that PIBT had cancelled his enrolment because his attendance dropped below 80%. The NOICC response indicated that the applicant had tried to move to another educational institution to continue his studies but PIBT would not give him a release letter. The reason he was trying to change providers was because of the clash between PIBT class times at the Mt Lawley campus and his casual working hours. The NOICC response stated that the applicant worked in a patisserie in Madeley from 5.00 am to 8.00 am and his classes started at 8.30 am and said that due to peak hour traffic delays he often arrived late. If he was 10 to 15 minutes he was marked absent despite being present. The NOICC response said PIBT would not or could not reschedule the applicant’s classes.

12. In the NOICC response the applicant’s migration agent contended that the ground for cancellation did not exist because despite PIBT marking the applicant absent from classes, he was there, albeit late. The migration agent said PIBT cancelled the applicant’s enrolment because he was marked absent on three days during a two week period in November 2015 which resulted in the applicant’s attendance falling to 70%. The migration agent stated that if this is correct it does not “seem to be a fair or reasonable assessment of his absenteeism”. Prior to the hearing the applicant’s migration agent provided a Certificate of Attendance dated 2 December 2015 from PIBT which indicated that the applicant’s 70% attendance was based on his three absences on 4, 6 and 9 November 2015.

13. The applicant told the Tribunal that he arrived 15 minutes late to classes three times due to the delay caused by traffic jams between his place of employment and PIBT. He said that school traffic caused the delays.

14. The Tribunal asked the applicant whether he was aware of the requirement that he punctually attend his classes and of the requirement that he attend 80% of his classes to maintain his enrolment. He said he was aware of both requirements.

15. The Tribunal asked the applicant when he became aware that he had been marked absent on the days he was late. He gave variable answers including that he was advised by email (although he could not say when he received the emails/s) and when he received the Certificate of Attendance.

16. The applicant gave inconsistent evidence regarding when he became aware that his enrolment had been cancelled and said he was advised by email and also said he found out when he tried to sit an examination. Initially he said the examination was in February or March 2016 and later said it was only when he tried to take a weekly test.

17. The applicant told the Tribunal that he was advised by PIBT Reception staff that he needed to obtain a Medical Certificate in relation to the days he was marked absent. He conceded that he was not sick however said he tried but “finally” he could not get one.

18. The Tribunal had regard to the NOICC response and asked the applicant whether he had tried to discuss the scheduling of his classes with PIBT. He said he had not done so.

19. The Tribunal noted that a period of nearly five months elapsed between the applicant ceasing to be enrolled in a registered course and the sending of the NOICC. This is a significant period and there was no evidence to indicate that the applicant sought to remedy the situation. The applicant told the Tribunal that he attempted to enrol with another education provider in April 2016 (Cambridge) however he was unable to do so because his visa had been cancelled. The Tribunal noted that this attempt was made after the applicant received the NOICC.

20. The applicant’s evidence with respect to what he was doing in the five month period was vague and inconsistent. He contended that he continued to study after his enrolment was cancelled because he was not aware of the cancellation but his evidence about timing and circumstances of when he became aware that his enrolment had been cancelled was unsatisfactory. He said he received an email from PIBT advising that his enrolment had been cancelled and after that he received an email advising that his visa had been cancelled. He was unable to provide any time frame as to when he received these emails and no hard copies of the emails were provided.

21. The applicant told the Tribunal that during the five month period and prior to receiving the NOICC he was not working. When asked how he supported himself he said his mother sent him money from Vietnam.

22. Having regard to the PRISMS information the Tribunal finds that the applicant ceased to be enrolled in a registered course on 20 November 2015. The Tribunal finds that he breached condition8202(2)(a) of his visa.

23. 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

24. 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).

25. The delegate pointed out that a visa holder must continue to satisfy the primary or secondary criteria for the visa above all matters including work.

26. The Tribunal noted that the delegate said the applicant did not contact the Department or Depart Australia after his enrolment was cancelled.

27. 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.

28. The Tribunal considered the applicant’s evidence with respect to the difficulty he had in attending his classes on time because of his working hours. The central purpose of a Subclass 573 visa is to enable the visa holder to enter and remain in Australia and undertake study in a registered course. It is expected that a visa holder would prioritise study obligations ahead of work obligations and this would include attending classes on time. The Tribunal had regard to the fact that the applicant was not enrolled in a registered course from 20 November 2015. The Tribunal finds that the applicant’s non-enrolment is a significant breach.

29. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds that there are no extenuating or compassionate circumstances in this case.

30. No evidence was provided by the applicant prior to the hearing with respect to the degree of hardship which would be caused by cancellation of his visa. When asked about any potential hardship during the hearing the applicant said he would be disappointed if he could not study.

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

32. 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.

33. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

34. The Tribunal affirms the decision to cancel the applicant’s Class TU 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.