1721496 (Migration)

[2018] AATA 2103

1721496 (Migration) [2018] AATA 2103 (22 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1721496

MEMBER:Sean Baker

DATE:22 January 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 573 Higher Education Sector visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 22 January 2018 at 4:20pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether the applicant was enrolled in a registered course – Applicant not enrolled in a registered course – Whether the visa should be cancelled – Genuine mistake – Applicant granted deferral for medical reasons – Applicant resumed studies after deferral – Decision set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1)
Migration Regulations 1994 (Cth) Schedule 8, Condition 8202(2)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated [June] 2017 made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study from [September] 2016 until the cancellation decision [in] June 2017, and, with no response from the applicant, that factors in favour of cancelling the visa outweighed those against. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The application to the Tribunal was made significantly after the relevant time period. However, after considering the applicant’s response to the Tribunal’s no jurisdiction letter and the file from the Department it appears that there has been a defect in the notification of the decision to the applicant. The notes from the Department file indicate that the applicant’s email address from PRISMS is recorded as ‘[Email 1]’. The file notes also record that the applicant was contacted by telephone and consented to email use and confirmed his email address as ‘[Email 2]’. From the case notes it appears that this confirmation was by telephone. According to the applicant’s response to the Tribunal, he argues that the first email address is his correct email address, and that the second one is a transcription error (he claims on the part of his University). Whilst not free form doubt, I consider that the facts in this case tend to indicate that the applicant’s email address at the time of the NOICC and the decision notification was ‘[Email 1]’. Therefore, the applicant was not correctly notified of the decision [in] June 2017 and time to apply for review continued to run. I find that I have jurisdiction to review the first named applicant’s visa refusal.

4. In relation to the second and third named applicants, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. The Third named applicant was not the subject of any decision by the Department and is therefore not reviewable.

5. The applicants were represented in relation to the review by their registered migration agent.

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 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?

8. 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).

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

10. It is common ground here that the applicant deferred semester 2, 2016 for medical reasons. This is evidenced in PRISMS which notes that the applicant was approved by his provider, [University 1], for leave of absence for Semester 2, 2016 and had provided a medical certificate. The Departmental decision notes that PRISMS indicates the applicant did not, however, maintain a CoE for this semester.

11. The applicant’s most recent, and current, CoE, also with [University 1], has a course start date of [February] 2017.

12. This indicates that the applicant, whilst he did have approved leave of absence from his provider, was not enrolled, and therefore was in breach of condition 8202(2) from [September] 2016 until [February] 2017.

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course for this period. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. 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.

15. 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).

16. This case is one of ‘technical’ breach, where the applicant would not normally be considered for cancellation, given that he demonstrably was approved for leave of absence of the full breach period, and that after the leave of absence he has resumed study. I place significant weight on the PRISMS records indicating that the applicant is studying and has been doing so since [February] 2017 (Tf. 30 – 28). I also place considerable weight on the letter from [the] student advisor at [University 1] (Tf. 11) which explains the situation. This situation would, I believe, have led to the visa not being cancelled if the applicant had responded to the NOICC, but because of the problems with the transcription of his email address, I find that the applicant did not receive the NOICC and therefore was unable to respond. I place considerable weight on the applicant’s detailed and lengthy explanation of the situation at Tf25-24, and I accept his account of the situation in total – I note that his description matches with the chronology of when he sought the letter from [University 1] and the CoE.

17. All indications are that the applicant has resumed studies. I note that his resumed studies are in the same course as that he was previously studying when he had to defer for medical reasons. All indications are that the applicant was and is a genuine student, that he deferred a semester for medical reasons, that this deferral was granted, and that he resumed his studies at the appropriate juncture. I give the letter from [the student advisor] and the PRISMS records very significant weight towards the visa not being cancelled. He should be allowed to continue studying.

18. I have had regard to the delegate’s decision and consider that their reasoning at the time and with the information they had then to be entirely reasonable, but I have now been provided with more information which clearly sets out the situation of the applicant. Given this information I have not felt the need to have a hearing because I consider that the factors in favour of the visa not being cancelled far outweigh any factors against, and that the correct or preferable decision in this case is to set aside the decision and reinstate the applicant’s visa.

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

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 573 Higher Education Sector visa. The Tribunal has no jurisdiction with respect to the other applicants.

    Sean Baker
    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.