Cronje (Migration)

[2019] AATA 4113

Cronje (Migration) [2019] AATA 4113 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Philip Hugh Cronje
Mrs Lizell Nadine Liebenberg
Mr Jonathan Paul Cronje

CASE NUMBER:  1833990

HOME AFFAIRS REFERENCE(S):           BCC2018/4029567

MEMBER:David Thompson

DATE:13 August 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.

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

Statement made on 13 August 2019 at 1:49pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – incorrect PRISMS record – confirmation of deferment – consideration of discretion – circumstances giving rise to non-enrolment – incorrect migration advice – proactive steps to remedy breach – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
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 19 November 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the first-named applicant had failed to comply with condition 8202 on his visa, in that he was not enrolled in a registered course of study from 30 June 2017 to 10 September 2018, and that in the circumstances of the case the grounds for cancelling the first-named applicant’s visa outweighed the reasons for not cancelling. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were 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. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The first and second-named applicants appeared before the Tribunal on 19 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Paul Cronje, the first-named applicant’s brother.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the first-named applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the first-named applicant (hereafter referred to simply as ‘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.

   The evidence before the Tribunal

7. The evidence given to the Tribunal by the applicant, both documentary and oral, is relevant to both the issue of whether the applicant did in fact breach condition 8202 and to the issue of whether, if he did breach that condition, his visa should be cancelled. It is therefore convenient to consider that evidence before proceeding to consider those issues.

8. The applicant gave extensive evidence as to the course of his studies in Australia. In summary, that evidence was as follows:

   a.The applicant, who has a background in automotive mechanics, enrolled to study for a Diploma of Civil Construction Design at the Beaconsfield campus TAFE Australia (TAFE) before arriving in Australia.

   b.After arriving in Australia, the applicant attended an orientation day at TAFE’s Beaconsfield campus.

   c.At that orientation day the applicant learned that TAFE Australia offered qualifications in automotive technologies, and formed the view that given his background in automotive mechanics, studies in this area would be of greater advantage to him than qualifications in Civil Construction Design.

   d.The applicant therefore transferred his enrolment to a package course consisting of a Certificate IV in Automotive Mechanical Diagnosis and Diploma of Automotive Technology (the completion of the Certificate IV being a precondition for enrolment in the Diploma course), and commenced his studies in semester 1 of 2017 at the TAFE Carlisle campus.

   e.During semester 1 of 2017, the applicant learned that achievement of a Certificate III in Light Vehicle Mechanical Technology was a prerequisite for the Certificate IV in Automotive Mechanical Diagnosis, in which he was enrolled, and that although he might complete his coursework for his Certificate IV he would have to validate his South African qualifications with VETASSESS as equivalent to the Certificate III before he could be awarded his Certificate IV and proceed to Diploma studies.

   f.The applicant decided to obtain a skills assessment from VETASSESS, and sought advice and assistance from a registered migration agent.

   g.It became apparent to the applicant that seeking a VETASSESS skills assessment was a relatively time-consuming and expensive process, and that seeking that assessment whilst studying for his Diploma in Automotive Technology would place him and his family under significant burdens.

   h.On his migration agent’s advice, the applicant applied to defer his Diploma of Automotive Technology studies for semester 2 of 2017 while he obtained his skills assessment. That deferral was granted. The applicant’s migration agent advised him that he would not be breaching his visa conditions by deferring his studies, and that he did not have to take any steps to communicate with the Department in respect of his deferral of studies, because this would be done by TAFE

   i.The applicant received his successful skills assessment on 27 November 2017.

   j.On 5 November 2017 the applicant contacted TAFE to re-enrol in the Diploma of Automotive Technology course he had originally intended to start in the second semester of 2017.

   k.At about the same time, the applicant’s employer offered him sponsorship through the Employer Nomination Scheme for a Subclass 186 visa, an offer which the applicant accepted.

   l.On 7 November 2017 the applicant was informed (in an email received from TAFE on that day) that the Diploma course was not being offered at the Carlisle campus in first semester, and that he would have to study at the Kwinana campus instead.

   m.The applicant investigated the practicalities of doing this, but he and his family had settled in an area convenient for the Carlisle campus and he found that travelling to Kwinana by public transport to study would, given his childcare responsibilities, be practically impossible.

   n.He therefore informed TAFE, by email dated 8 November 2017, that he would prefer to wait until second semester 2018 and study for his Diploma at Carlisle campus. TAFE responded on 10 November 2017, pointing out that his would mean that the applicant had a 1 year gap in his studies, and suggested that he speak to the Department about this.

   o.The applicant took advice from his migration agent who (so far as the applicant was aware) contacted the Department. The advice the applicant received was, in summary, that a deferment by reason of material change to TAFE’s course offering would not count against him, particularly as he was applying for a Subclass 186 visa.

   p.The applicant also gave evidence that he was advised that he would be able to obtain a Bridging Visa once his application for a Subclass 186 visa was lodged, and that this would give him the right to study and work until his Subclass 186 visa application was determined. The applicant has provided documentary evidence in the form of an email from his migration agent to his employer dated 30 May 2018 referring to such advice. Although that email is dated considerably later than the applicant’s correspondence with TAFE, it does substantiate the applicant’s oral evidence as to the advice he received.

   q.On 27 November 2017 the applicant informed TAFE by email of this advice and, in effect, asked it to proceed.

   r.The applicant was granted a Bridging Visa A on 23 July 2018, and was advised in the correspondence informing him of this fact that the bridging visa would become active if his current visa (that is, his student visa) ended before his Subclass 186 visa application was determined.

   s.On or about 23 July 2017 the applicant was advised by his migration agent that in order to activate his Bridging Visa A he needed to cancel any enrolments that were linked to his student visa. Acting on this advice, the applicant cancelled his enrolment on 25 July 2018.

   t.Very shortly afterwards, on or about 27 July 2018, the applicant realised that the advice he had been given about cancelling his enrolment was wrong, and contacted TAFE in an attempt to reinstate his enrolment in the Diploma of Automotive Technology course for the second semester of 2018.

   u.However, TAFE advised that it was too late and that he would be under a very great disadvantage if he commenced the Diploma studies so late. The applicant then engaged in discussions with TAFE as to alternative enrolments, and was advised that he should investigate private education providers who could be more flexible regarding the dates on which courses started. He was also advised that once he had an offer of enrolment from such a private provider he should apply to TAFE for a release.

   v.The applicant ultimately obtained an offer from New England College Perth for enrolment in its Diploma of Leadership and Management course, and completed the necessary procedures to obtain a release from TAFE. That course commenced on 10 September 2018.

   w.The applicant received the Department’s Notice of Intention to Consider Cancellation (NOICC) on or shortly after 14 September 2018, the date upon which it was issued.

9. The Tribunal accepts this evidence. The applicant presented as a sincere and credible witness, and his oral evidence summarised in paragraph 8 above was corroborated on most points by documentary evidence provided to the Tribunal. Where the applicant’s oral evidence was not corroborated by documentary evidence, it was plausible in itself and was not contradicted by any evidence before the Tribunal.

   Did the applicant comply with Condition 8202?

10. 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 full-time registered course: 8202(2)(a);

    ·must maintain enrolment in a registered course that, once completed, will provide a qualification at the same or higher level of the Australian Qualifications Framework as the course for which the visa was granted (subject to a limited exception not presently relevant): 8202(2)(b);

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(c)(ii).

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

12. The delegate’s decision record, which the applicants provided to the Tribunal with their application for review, stated that:

    a.on 30 June 2017 the applicant’s education provider, TAFE International Western Australia, informed the Department that the applicant had ceased studies and was no longer enrolled; and

    b.the applicant’s record from the Provider Registration and International Student Management System (PRISMS) showed that the applicant had enrolled in a course of study with the New England School of English on 10 September 2018.

13. From this information, the delegate concluded that the applicant had not been enrolled in a registered course of study between 30 June 2017 and 10 September 2018, a period of 437 days. The delegate noted that this had been put to the applicant in the Department’s NOICC, and that the applicant had not responded.

14. The delegate’s finding was put to the applicant at hearing. The applicant stated in evidence that it was indeed true that he had not been enrolled in any course of study between those dates. However, the Tribunal is not satisfied that this admission was properly made.

15. The Tribunal has reviewed the Departmental file regarding the cancellation of the applicants’ visas. Although the delegate’s decision states that TAFE International Western Australia informed the Department on 30 June 2017 that the applicant had ceased his studies and was no longer enrolled, the Departmental file contains no record of any such direct communication. Rather, the delegate’s case notes refer only to the applicant’s PRISMS record. The Tribunal concludes that the delegate relied solely on the applicant’s PRISMS record and that, as the information in all PRISMS records comes from education providers, this is in fact what the delegate meant in stating the source of the relevant information.

16. As has been stated in paragraph 8(h) above, the applicant’s evidence was that he deferred his enrolment in the Diploma component of his course package in the second semester of 2017 while he sought certification of his South African qualifications through VETASSESS. The applicant has provided the Tribunal with a copy of an email message from TAFE dated 1 August 2017 confirming that his enrolment was deferred. The Tribunal prefers this more direct evidence of the applicant’s enrolment status to the less direct evidence of the PRISMS record, and finds that on the evidence before it the PRISMS record is incorrect. As a result, the Tribunal is not satisfied that the applicant was in breach of condition 8202 from 30 June 2017.

17. The evidence relating to the applicant’s enrolment status in the first semester of 2018 is less clear. It is clear from the email correspondence mentioned in paragraphs 8(l) - (q) above, and particularly the applicant’s email message of 27 November 2017 which expressly uses the word “deferral”, that the applicant intended to seek a further deferral of studies. It is not so clear that TAFE granted a deferral, as no correspondence confirming the grant of deferral has been provided to the Tribunal. Against that, it should be noted that the applicant’s actions in cancelling his enrolment on 25 July 2018 would make no sense if he did not believe that he had been enrolled for the second semester of 2018, and that the response from TAFE on the same day confirming that his enrolment had been cancelled plainly indicates that there had been an enrolment to cancel. Further, the applicant’s attempt to reinstate his enrolment on 27 July 2017 and his subsequent email correspondence with TAFE mentioned in paragraph 8(t) – (u) contains nothing indicating that the applicant had not deferred his enrolment to the second semester of 2018. The preponderance of evidence leads to the conclusion that the applicant was enrolled in the first semester of 2018, although he had deferred his studies to the second semester of that year, and the Tribunal finds accordingly.

18. It is, however, quite clear on the evidence before the Tribunal that the applicant was not enrolled in any registered course of studies between 25 July 2018 and 10 September 2018, as required by condition 8202(2)(a). Accordingly, and to that extent, the applicant has not complied with condition 8202.

    Consideration of the discretion to cancel the visa

19. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case. Those circumstances include the matters raised by the applicant in his oral evidence at hearing before the Tribunal, and also in his written submissions dated 26 September 2018. Those written submissions were provided originally to the Department in response to the Department’s Notice of Intention to Consider Cancellation (NOICC) dated 14 September 2018. They were separately lodged, along with the documentary evidence to which they refer, with the Tribunal in support of the applicant’s application for review. The Tribunal has also had regard to the matters set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

    Purpose of the applicant’s travel to and stay in Australia.

20. The applicant is a South African national. He gave evidence that he qualified as a motor mechanic in South Africa and worked in the automotive industry for some time, but later moved to work in the resources industry. As a result of this change of sector he felt the need to upgrade his qualifications, and applied for a student visa to study a Diploma of Civil Engineering in Australia. The applicant was granted a Student Visa (Subclass TU-500) on 22 November 2016, and arrived in Australia with his wife and child (the second and third-named applicants) on 22 January 2017.

21. The applicant stated in his evidence before the Tribunal that his purpose in coming to Australia was to further his education, in doing so to further his employment prospects, and at the same time to expose himself and his family to a new culture. There is no evidence before the Tribunal contradicting that statement. The Tribunal gives this factor a little weight in the applicant’s favour.

    Circumstances in which the ground of cancellation arose

22. The Tribunal has found above that the applicant was in breach of condition 8202 from 25 July 2018 to 10 September 2018. The Tribunal finds that the principal cause of this gap in studies was the incorrect advice his migration agent had given him regarding the circumstances in which his Bridging Visa A would be activated. While the applicant was not compelled to act on that advice, it was not unreasonable for him to accept it. Certainly, there is no evidence that the applicant breached condition 8202 wilfully, recklessly, through failing to apply himself to his studies, or for any other reason that could be considered entirely his own fault or responsibility. The Tribunal gives this factor considerable weight in favour of the applicant.

    Extent of compliance with visa condition

23. As has been noted above, the Tribunal has found that the applicant was in in fact compliant with condition 8202 for a very much longer period than the period identified and relied on by the delegate in her decision record. Even so, the applicant was in breach for 6 weeks and 5 days. On its own, the Tribunal would give this circumstance moderate weight against the applicant.

24. However, the evidence shows that the applicant took steps to remedy the situation as soon as he became aware that he was in breach, two days after the breach first occurred, and there is nothing in the evidence before the Tribunal to suggest that the applicant let matters rest after that first effort. Further, there is no evidence before the Tribunal that the applicant has breached any other visa condition. The Tribunal finds that these factors ameliorate the extent of the applicant’s breach, and gives only some weight to this factor against the applicant, as a reason for cancelling his visa.

    Degree of hardship that may be caused

25. The applicant gave evidence at hearing that he has suffered some emotional distress as a result of the cancellation, and would continue to do so as a result of having a visa cancellation on his record. He also gave evidence that he would suffer hardship if his chances of obtaining visas to other countries were compromised. The applicant gave no evidence of any other hardship that would be caused if his visa were cancelled. The Tribunal finds that this factor favours the applicant, but gives it only slight weight.

    Applicant’s past and present behaviour towards the Department

1. There is no evidence before the Tribunal that the applicant has been uncooperative with the Department or its staff. The Tribunal gives factor a little weight in the applicant’s favour.

   Whether there would be consequential cancellations under s.140

2. The applicant’s evidence is that the only other people whose visas would be cancelled as a result of the cancellation of the applicant’s visa are his wife and son, the second and third named applicants. There is no evidence before the Tribunal suggesting that either of them has applied for a visa independent of the applicant, or that they are no longer part of his family unit. The Tribunal gives this factor a little weight in the applicant’s favour, as a reason to refrain from exercising the discretion to cancel his visa.

   Whether there are mandatory legal consequences

3. The applicant is currently in Australia on a Bridging Visa E. His evidence was that he applied for and received that bridging visa on the basis of his application for a Subclass 186 visa, which is still in process. He would not, therefore, become an unlawful non-citizen if the Tribunal affirmed the delegate’s decision, and would not (without more) be liable for detention under s.189 or removal under s.198 of the Migration Act 1958.

4. However, affirmation of the delegate’s decision would, however, place a limitation under s48 of the Act on the Australian visas which the applicant could be granted. The applicant may also be ineligible for a grant of a further temporary visa for a period of time by reason of Public Interest Criterion 4013.

5. Overall, the Tribunal gives these considerations a little weight in favour of the applicant.

   Whether any international obligations would be breached as a result of cancellation

6. Cancellation of the applicant’s visa would result in the cancellation of the third named applicant’s visa. The third named applicant is a child, and Australia is a signatory to the Convention on the Rights of the Child. Article 3(1) of that Convention provides that the best interests of the child shall be the primary consideration in all actions concerning children undertaken by (inter alia) courts of law or administrative authorities. There is no evidence before the Tribunal suggesting that the third-named applicant could not relocate with his parents if the applicant’s visa were to be cancelled, or would in doing so suffer any particular detriment, as to health or otherwise, or any breach of rights under the Convention.

7. There is no evidence before the Tribunal suggesting that any other international obligation to which Australia is subject is engaged in the circumstances of this case.

8. The Tribunal gives this factor no weight, either for or against the applicant, in determining whether to exercise the discretion to cancel the applicant’s visa.

   Any other relevant matters

9. No other relevant matter affecting the exercise of the discretion to cancel the applicant’s visa arises on the evidence before the Tribunal.

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

    DECISION

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa. The Tribunal has no jurisdiction with respect to the other applicants.

    David Thompson
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder must be enrolled in a full‑time course of study or training if the holder is:

    (a)a Defence student; or

    (b)a Foreign Affairs student; or

    (c)a secondary exchange student.

    (2)A holder not covered by subclause (1):

    (a)must be enrolled in a full‑time registered course; and

    (b)subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a) is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)changes their enrolment to a course at the Australian Qualifications Framework level 9.