DE SILVA (Migration)

[2017] AATA 911

DE SILVA (Migration) [2017] AATA 911 (18 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ASHAN NAYANAJITH DE SILVA

CASE NUMBER:  1606510

DIBP REFERENCE(S):  BCC2016/971373

MEMBER:Rachel Westaway

DATE:18 May 2017

PLACE OF DECISION:  Melbourne

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 18 May 2017 at 4:26pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Enrolment – Applicant’s course registration ceased – Applicant completed course – Brief period overseas – College disputed notification of leave – Delay in fee payment – Confusion over enrolment extension to complete assignments

LEGISLATION

Migration Act 1958, s 116(1)(b)

Migration Regulation 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 May 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 delegate cancelled the visa on the basis that the applicant had breached the condition and was not enrolled in a registered course and there was no evidence before the delegate of the applicant’s claimed. 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 17 November 2016 to give evidence and present arguments. 

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

5. 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

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.

   Did the applicant comply with Condition 8202?

7. 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).

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

9. The applicant was notified by the Department of the intention to consider cancellation (NOICC) on 21 April 2016 on the bases that the evidence on the Provider Registration and International Student Management System (PRISM) which indicated that the applicant has not been in a registered course of study since 4 October 2015 and appears to have breached condition 8202(2)(a) of his visa.

10. The applicant’s lawyer responded on behalf of the applicant on 27 April 2016. The submission stated that there is a “factual dispute” and the applicant has been studying full time since his visa in June 2014 and has performed well.  It claims he has completed a Certificate III in Light Vehicle Mechanical Technology however the completion and letter and certificate are pending. In May 2015 he asked the provider for an extension of time to complete the course due to a wedding in Sri Lanka he wished to attend between 31 May 2015 and 3 July 2015. No formal request was made and no formal permission provided. His submission states that he was told this would be granted and his CoE extended. He stated that he would seek to obtain evidence of this. The submission stated that the applicant intends to complete his Certificate IV in Automotive Mechanical Technology by the end of 2015 as he has invested “heavily in it”. A CoE was provided for this course. An extension to obtain further material for “2-3” was requested. The letter did not confirm whether this was days or weeks.

11. On 3 May 2016 the delegate cancelled the visa. The applicant did not supply any further material.

12. The applicant applied for review of the decision at the Administrative Appeals Tribunal. A submission dated 14 November 2016 was provided to the Tribunal by the applicant’s lawyer on his behalf. It stated that the applicant has always been a fulltime student and was enrolled in the Australian Education Academy from October 2015 to April 2016 however PRISM did not reflect this. The applicant claims he was overseas and had verbal advice from the course provider that the CoE would be extended and they have since advised the applicant’s lawyer that they do not have anything on record to indicate this. The applicant’s lawyer has requested that the Tribunal make independent enquiries or this will lead to “jurisdictional error”. It is not the role of the Tribunal to do this and this was explained to the applicant’s lawyer at hearing.

13. The submission stated that when the applicant returned he continued to study and he submitted his assignments in January 2016 and discussion with the course provider confirmed that he would be permitted to formally complete the course in April 2016 and he was provided with completion certificates.

14. The submission also included a statement of results which was incorrectly dated at 9 January 2016 but that would not have been possible as the applicant had not submitted his final assignments and a completion letter dated 3 October 2015 which again the applicant states is incorrect because he had not completed several subjects. A statement of Account indicating the applicant paid his final instalment in April 2016 which is correct. The submission argues that the errors in the dates on certificates provided by the education provider are indicative of their “cover-up” and mismanagement.

15. The applicant provided the same consistent information at hearing as to that which he did in his submissions. He explained that he had

16. The applicant confirmed he arrived in Australia in 2007. He said he came with his partner and she was studying. That relationship ended. The applicant said he started his own studies in 2011. He commenced a course Certificate III and a Diploma in Accounting. He studied with Education Australia. He completed these.

17. He has used a migration agent to apply for his student visas. He used a different one previously. He confirmed he had one refusal of a student visa because he did not submit the correct documents.

18. The applicant was asked about his future aspiration and he said he wants to be an automotive technician. He said he has friends who work with cars and he has become interested in this.

19. The applicant confirmed he went away for 7 weeks for his wedding. He said he let them know that he was going away and they said they’ll give him some time to complete his two assignments at the end of the course. He thought he would finish in January. He confirmed he never informed his migration agent or the Department of the verbal extension. The Tribunal explained that the applicant had enough experience in applying for visas that he should have notified the Department of a change in his circumstances and the applicant said he thought the course provider would manage this.

20. The applicant’s lawyer provided an explanation of her attempts to contact the course provider to show that the applicant continued to remain studying and submitting assignments however she claims that the organisation has been very difficult to deal with.

21. The Tribunal called the education provider during the hearing to request their attention to the matter and to ask for any confirmation regarding the applicant’s studies post October 2015 and to ascertain why the dates don’t correspond on certificates that have been issued by them. The Tribunal spoke with Vivek the Administration Manager of Australian Education Academy and he confirmed he would arrange for the appropriate person to liaise with the applicant’s lawyer to obtain the necessary documentation the applicant needed.

22. The Tribunal gave the applicant one week to obtain the material. The hearing concluded.

23. Following the hearing the applicant’s lawyer provided an additional submission dated 22 November 2016. Contained in it were further details about their attempts to contact the course provider to obtain evidence the applicant was enrolled or was given permission to extend the enrolment. Attached to the submission is an affidavit from the applicant and an email from the course provider confirming the applicant as a full time studying student. There was also an email to the applicant’s lawyer responding to questions. It confirmed the applicant had submitted assignments after November 2015.

24. Contained in the same email on the Tribunal file ff 39 under “Additional Notes” it stated that the student studied at AEA only until 24 December 2015 and not until April 2016 and that communication between the student and the course provider during this period was related to outstanding fees. However it also stated that this is “not to indicate that he is a full time student … till 26 April 2016”. It further stated that due to an Academic Intervention Strategy the CoE was extended until 24 December 2015. It further stated that “The student completed all of his assignments by 24 December 2015 and the student was issued a course completion certificate on the 29 December 2015. However this has erroneously not been reflected in the PRISM. This has since been rectified and a “Course variation’ event was created using PRISM system to reflect the increased duration of the course for this student (copy attached).

25. The “Additional Notes” also stated “The date in the completion letter was mentioned as 03 October 2015, since that was the original COE end date. The same is corrected for, and the Course completion letter is amended to reflect the new completion date (Copy Attached)”. In summary it also stated that as the student could not pay his fees the certificates and transcript although being available in January 2016 were not collected until 26 April 2016 when he cleared his final payment.

26. The dates of supposed non-enrolment are from 4 October 2015 until 21 April 2016. Following receipt of the applicant’s submission, the Tribunal reviewed the PRISMS. The applicant had a valid CoE from 4 October 2015 to 24 December 2015. It notes the applicant’s course ended on 24 December 2015 and that is the date he stopped studying. PRISMS has also been updated and shows that the applicant’s enrolment ended on 24 December 2015. At the time of the NOICC dated on 21 April 2016, the applicant was not enrolled in a registered course.

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

    Consideration of the discretion to cancel the visa

28. 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.

29. 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).

30. The Tribunal has considered the submissions provided by the applicant and the oral evidence detailed above which he provided during the hearing.

31. The applicant confirmed that he arrived in Australia as a dependent on his first wife’s student visa. Following their separation the applicant perused his own study. He confirmed the courses he completed and noted that due to incorrect paper work, one visa refusal was received. There is nothing before the Tribunal which suggests the applicant has breached other conditions on his previous visas.

32. The Tribunal acknowledges that the applicant has successfully completed previous courses however the Tribunal is not satisfied that this means that the visa should not be cancelled.

33. The applicant provided evidence from his course provider that he had submitted assignments in December 2015 post his course “officially ending”. The Tribunal gives this significant weight in that it goes some way to support the applicant’s argument that he is committed to study and was under the impression that he was given an extension of enrolment to coincide with an extension to submit assignments.

34. The applicant was granted a student visa to undertake studies and the purpose of the visa is to allow the holder to come and stay in Australia to undertake an approved course of study. The applicant was not enrolled in a registered course of study from 25 December 2015 to 3 May 2016 when the visa was cancelled. This is a four month period and whilst reasonably substantial, the Tribunal does note that the course provider would have been closed for a period due to the Christmas New Year break.

35. The Tribunal notes that the applicant was to complete the Certificate III and then continue to complete a Certificate IV which was to commence on 26 April 2016. He did not manage to commence the Certificate IV due to the cancellation.

    Degree of hardship that may be caused

36. The applicant gave evidence that he has a wife and family in Sri Lanka  and that he would like to continue his studies here and possibly bring his wife to Australia whilst he is studying. The Tribunal appreciates that the cancellation of the visa may cause the applicant and his family a certain degree of hardship as a result of not being able to pursue further studies in Australia and potential stress.  The Tribunal acknowledges that the applicant said that he wanted to continue his studies in Australia.

37. If the applicant’s visa were to be cancelled, he could become an unlawful noncitizen and he could be detained. He would have limited options to apply for further visas in Australia and may be required to return to Sri Lanka. The Tribunal is satisfied that those are intended consequences of the legislation and they do not mean that the visa should not be cancelled.

    Circumstances in which the ground of cancellation arose

38. As outlined above, the applicant was not enrolled in a registered course for a four month period. The applicant explained that it was due to a misunderstanding because he was granted an extension to submit assignments due to his time away for his wedding. He provided evidence of the marriage and his trip. The tribunal accepts the applicant took time off for his wedding and asked for an extension for his assignments.  Verbal agreement was given by the course provider. He was told he could extend the period at the end of the year and submit assignments past November 2015. The applicant appears to have done this as he subsequently passed the course. However, the confusion occurred in that the course provider did not extend the applicant’s enrolment and registration and as such it has resulted in a breach. They have subsequently amended this to incorporate the time up to 24 December 2015. However, it is clear that the reason why the applicant was not enrolled further than that is because he appears to have owed money for his fees and these were eventually paid in April 2016. The Tribunal considers the breach of four months to be reasonably significant given the very nature of the visa is to be enrolled in a registered course in order to study. However, the Tribunal has also considered the fact that from November to February most education providers are closed and hence the length of time the applicant was not enrolled is weighed against this.  The Tribunal has also considered the confusion between the verbal agreement of an extension to submit assignments and an extension of enrolment.

39. The applicant did not explain the financial reasons associated with the breach although these were detailed by the course provider. The verbal agreement by the course provider and then the lack of follow-up by the applicant is accepted by the Tribunal but does not mean that the visa should not be cancelled.

    Past and present conduct of the visa holder towards the department

40. The applicant responded to the notice of intention to consider cancellation in a timely manner but was unable to obtain the information from the course provider as evidence to support his claims that he had been given verbal confirmation he could submit his assignments after the course ended in November 2015. It was not until the Tribunal called the course provider that the documents were provided and PRISMS was updated with the revised dates. Given the course provider’s reluctance to assist the applicant and the applicant’s confusion over the verbal agreement that he could extend his course because of his wedding overseas, the Tribunal appreciates that some confusion was likely to occur about the applicant’s valid enrolment and when it was actually extended to.  The Tribunal gives this some weight when considering whether the visa should be cancelled.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

41. This is not a breach of the holder of a subclass 457 visa.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

42. The applicant could become unlawful and may be subject to detention but these are consequences of the legislation and the Tribunal is satisfied that they do not mean that the visa should not be cancelled.

    Whether there would be consequential cancellations under s.140

43. There is no evidence before the Tribunal and the applicant is not claiming that there would be any consequential cancellations under s.140.

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

44. There is no evidence before the Tribunal and the applicant is not claiming that there are any international obligations that could be breached as a result of the cancellation.

    The impact on any victims of family violence

45. There is no evidence before the Tribunal that there is any victim of domestic violence or that there would be any such impact.

    Any other relevant matters raised by the visa holder

46. There are no other matters requiring consideration by the Tribunal.

47. The Tribunal acknowledges that the applicant travelled to Australia to study and he did complete his previous courses. Furthermore, the applicant has supplied his results showing he completed and passed all subjects up to the time of his visa cancellation. The Tribunal considers the study history of the applicant and his willingness to submit assignments in December 2015 shows that he had every intention of completing his studies if not for the cancellation. Furthermore the new Certificate IV course was not due to start until 26 April 2016 and this coincides with the date in which the applicant paid his fees. The Tribunal gives this significant weight.

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

    DECISION

49. 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.

    Rachel Westaway
    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.