Chawla (Migration)

[2018] AATA 4194

Chawla (Migration) [2018] AATA 4194 (13 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ishjot Singh Chawla

CASE NUMBER:  1709058

HOME AFFAIRS REFERENCE(S):           BCC2016/3592462

MEMBER:Jason Pennell

DATE:13 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 13 September 2018 at 11.45am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – confirmation of enrolment cancelled – attended class – completed subjects – failure by education provider – applicant invoiced – fees paid – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 20 April 2017 made by a delegate of the Minister for Immigration and Border Protection 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 delegate cancelled the visa on the basis that the applicant had not complied with a condition of the visa. 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 applicant appeared before the Tribunal on 12 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Simrawjot Singh Basanti and Mr Prabhjot Singh. The applicant’s spouse, Ms Japneet Kaur, also attended the hearing but did not give evidence.  

4.The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5.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

6.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.

7.The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) on 29 January 2015. He travelled to Australia on 11 February 2015 and commenced a certificate IV Accounting course. It was the intention of the applicant that upon completion certificate IV course he would enrol in and complete both a Diploma of Accounting and Bachelor of Accounting.

8.In October 2015 the applicant’s education provider, Chisholm Institute (‘the institute’), issued an ‘Intent to Report’ letter to the applicant. The applicant states that he never received the letter. The applicant was not able to say if the letter had in fact been sent but said that he thought that it may have been sent to his former address in Bendigo. It is noted by the Tribunal that it has not been provided a copy of the ‘Intent to Report’ letter. The applicant says that he never received a copy of the letter and it appears that the education provider did not provide a copy of the letter to either the Australian Border Force or the Department. 

9.In any event, it’s claimed by the education provider that the applicant failed to respond to the education provider’s letter within the required period of 20 days. As a result on 11 October 2015 the applicant’s Confirmation of Enrolment (CoE) was cancelled. The applicant travelled to India on 20 October 2015 and returned on 13 November 2015. The applicant claims that he was unaware that his COE had been cancelled.

10.In early 2016 despite not holding a current CoE, the applicant enrolled in the Certificate IV Accounting course and attended classes. In one subject he sat an exam in September 2016 and received a distinction. The applicant provided the tribunal with a student confirmation sheet which showed that he had been enrolled in the course by his education provider in 2016 and that he had completed a subject. In addition a letter from his education provider dated 28 March 2017 confirmed that, despite not having a valid CoE, the applicant did attend classes and was credited with having completed subject in 2016. It also confirms that he has paid all fees in relation to his course including those relating to his subjects in 2016.     

11.Finally, Mr Simrawjot Singh Basanti and Mr Prabhjot Singh provided statutory declarations to that stated that they attended classes with the applicant during 2016 and 2017. They both gave evidence by telephone consistent with their statutory declarations However, when asked about the classes they attended with the applicant both Mr Singh Basanti and Mr Singh’s evidence was vague and lacking detail. They were unable to tell the Tribunal the name of the subjects they claim to have attended with the applicant and the day of the week and time of each class. In addition they could not tell the Tribunal in any detail the circumstances by which they would meet the applicant when attending class. Accordingly, the Tribunal places no weight on either the evidence of Mr Simrawjot Singh Basanti and Mr Prabhjot Singh.  

12.Nevertheless, based on the education provider letter and despite the evidence of Mr Simrawjot Singh Basanti and Mr Prabhjot Singh, the Tribunal finds that the applicant did attend classes and completed subjects without a valid CoE in 2016.

13.It appears that despite having cancelled the applicants CoE the applicant’s education provider allowed the applicant to enrol in the Certificate IV course in 2016 for which it invoice the applicant the relevant student fees for which it was ultimately paid. The education provider’s letter dated 28 March 2017 confirms that during 2016 the applicant attended class and was assessed, having completed and passed exams, in relation to at least one subject. It’s noted that on the applicant’s student confirmation sheet the applicant is recorded as having enrolled in three other subjects but is recorded as having withdrawn due to inadequate participation.   

14.The applicant travelled to India on 13 October 2016. Upon his return at Melbourne airport on 27 October 2016 the applicant was detained due to the fact that he did not hold a valid visa by reason that his CoE had been cancelled in October 2015. The applicant claims this was the first time that he had been informed that his CoE had been cancelled.  

15.A Notice of Intention to Consider Cancellation (NOICC) dated 22 March 2017 was sent to the applicant advising that he was in breach of a condition of his visa and inviting him to respond to the NOICC.

16.The Department received the applicant’s response to the NOICC on 29 March 2017. The applicant did not dispute the grounds for cancellation. However, stated that the CoE was cancelled without his knowledge and without him having an opportunity to respond to the education provider’s ‘Intent to Report’ letter. The applicant’s position was that he was a genuine student as he had continued to enrol in his course and attend classes in 2016 and 2017 even after the time the CoE was cancelled.

17.The delegate cancelled the visa on 20 April 2017 on the basis that the applicant was in breach of condition 8202(2) of the grant of the visa was not enrolled in a registered course of study from 11 December 2015 to 20 December 2016.

18.The applicant provided the following documents:

(a)Applicant’s submissions dated 6 February 2018.

(b)Applicants Statutory Declaration dated 3 September 2018.

(c)Statutory Declaration by Japneet Kaur dated 3 September 2018.

(d)Statutory Declaration by Effy Pellis dated 30 August 2018.

(e)Statutory Declaration by Mr Prabhjot Singh dated 3 September 2018.

(f)Statutory Declaration by Mr Simrawjot Singh Basanti dated 5 September 2018

(g)Copy of text message conversation between the applicant and Ms Effy Pellis dated 29 August 2018.

(h)Copy of applicant’s student identification card.

(i)Letter from Peter Lucas of Chisholm Institute dated 5 September 2018.

(j)Applicant’s Student Confirmation Sheet 2015 - 2017.

(k)Email for Naomi Shiels to the applicant dated 31 August 2016.

(l)Email for Sereno D’Mello dated 7 October 2016.

(m)Diabetes Care Centre Medical Certificate dated 24 October 2015.

(n)Applicants student payment Items.

(o)Application for leave of absence dated 27 October 2015.

(p)Letter for Chisholm Institute dated 28 March 2017

(q)Payment receipts from Chisholm Institute dated 20 December 2016.

(r)Email dated 29 January 2018 from Chisholm Institute to the applicant.

(s)Email dated 5 February 2018 from Chisholm Institute to the applicant

(t)Copy of lease dated 15 December 2016 

Did the applicant comply with Condition 8202?

19.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).

20.In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. While the applicant’s attendance and participation in the course is questionable and his progress in the course being at best borderline, it appears that he was enrolled during the period from 11 December 2015 to 20 December 2016. In all the circumstances the education provider has failed to adequately inform the applicant that his CoE had been cancelled, accepted his enrolment in a registered course for 2016 and invoiced the applicant for student fees associated with his enrolment in the course during that period, which have been paid.

21.Therefore, on the evidence before the Tribunal, it appears that the applicant was enrolled in a registered course during the period it’s claimed that he was in breach of condition 8202(2). Accordingly, the applicant has complied with condition 8202(2).

22.As the applicant has not failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) does not arise. It follows that the visa cannot be cancelled.

DECISION

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

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.