Dheevan (Migration)

[2018] AATA 1780

Dheevan (Migration) [2018] AATA 1780 (23 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ezekiel Dheevan

CASE NUMBER:  1702918

DIBP REFERENCE(S):  BCC2016/3844700

MEMBER:Fiona Meagher

DATE:23 February 2018

PLACE OF DECISION:  Brisbane

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 23 February 2018 at 8:34pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector – Whether the applicant was enrolled in a registered course – Applicant not enrolled in a registered course – Consideration of discretion to cancel – Genuine mistake – Genuine effort to notify Department of changes in circumstance – Genuine intention to undertake studies – Decision set aside and substituted

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 February 2017 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 did not comply with condition 8202 of his 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 11 December 2017 to give evidence and present arguments.

4. 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

5. 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?

6. 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).

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

8. The applicant was initially granted a subclass 572 visa on 6 February 2016, to remain valid until 12 April 2017. He applied for and was granted that visa whilst onshore on a visitor visa. Upon the grant of his 572 Visa, the applicant attempted to enroll in a vocational course, but was unable to do so due to having insufficient funds to pay for the course. He had funds saved in Malaysia for the purpose of education, but in order to access those funds was required to return to Malaysia for thumbprint verification and a signature. Accordingly, the applicant did not proceed with any vocational educational pursuits in the first half of 2016. He claims that prior to returning to Malaysia to access the necessary funds, he visited the immigration office in Brisbane and spoke to an officer by telephone to advise them of the difficulties he was having in paying for the education.

9. The applicant successfully accessed his education fund in Malaysia, contacted his agency who advised him that his Visa was still valid and returned to Australia to commence certificate III in fitness at the Eagle Academy. On 3 August 2016 the applicant commenced studying for his certificate three in fitness, and so far as he was concerned continued to do so until 13 February 2017, upon which date he received a Notice of Cancellation of his student Visa. The applicant acknowledged that he had received a Notice of Intention to Consider Cancellation (NOICC) of his student Visa dated 1 February 2017, but stated that he explained his situation to Eagle Academy, who told him that they will update the immigration system and contact his agent. He said that he thought that everything was fine and therefore did not reply to the NOICC.

10. The applicant provided the Tribunal with lengthy and quite complicated correspondence from the Eagle Academy explaining that the applicant had in fact two records in PRISMS, which were merged on 16 February 2017. During 2016, it would appear that there were periods where he was not enrolled in a registered course. Further, it would appear that the Provider Registration and International Student Management System  (PRISMS) “expired” his certificate of enrolment without notifying the academy, or indeed the applicant.

11. In any case, it would appear that for periods of time during 2016 the applicant was not enrolled in a registered course.

12. 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

13. 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.

14. 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).

15. The applicant provided very clear evidence at the hearing with respect to the chronology of events as he had experienced them. He acknowledged that he did not commence studying in early 2016, upon receipt of his subclass 572 Visa. However, he gave clear evidence that he advised the Department that he was unable to commence his studies as initially intended, but that since accessing the money to pay for his studies he has pursued a certificate III in fitness with a view to pursuing a certificate IV in fitness. So far as he was aware a certificate of enrolment was cancelled and changed to a new certificate of enrolment around 18 January, due to changes in the curriculum requirements of the course he was undertaking. Other than that he was unaware that his Visa was at risk. Indeed, he gave evidence that prior to returning to Australia after obtaining the funds to pay for his studies he verified that his Visa had not been cancelled through his agency. As well, the applicant relied upon his agent and the Eagle Academy who assured him that his enrolment was valid.

16. In that regard, the Tribunal has sighted correspondence from the Eagle Academy dated 6 February 2017 and 16 February 2017 explaining that there were two PRISMS records for the applicant which greatly complicated the applicant’s circumstances, and the awareness of the Eagle Academy as to his situation.

17. The Tribunal has also sighted an academic record in respect of the applicant from the Eagle Academy showing that he has passed four of the five subjects during his first study period. The Tribunal has also sighted a letter dated 23 February 2017 from a Nathan Gee, sports and fitness trainer for the Eagle Academy, confirming that the applicant has been a positive and enthusiastic student who has applied himself diligently to his studies.

18. The applicant told the Tribunal that he wishes to complete his certificate III, and his certificate IV in fitness so that he can return to Malaysia and pursue a career as a personal trainer. He stated that prior to the cancellation of his visa he had been working for Pizza Hut or Domino’s casually, but since the cancellation had been supported by money sent to him by his father. The Tribunal cited evidence of receipts in that regard. The applicant also told the Tribunal that he had worked in two fitness centres in Malaysia, in support of his career goals. The Tribunal sighted two contracts of employment between the applicant and fitness centres in Malaysia in that regard.

19. The Tribunal has considered the circumstances in which the breach occurred in this case. It has also considered the efforts made by the applicant to remain properly enrolled in vocational study in Australia.

20. The Tribunal considers that the applicant has partially fulfilled the purpose of his travel to and his stay in Australia, and genuinely wishes to continue to do same. The Tribunal has had regard to the applicant’s enrolment in a registered course to commence in March 2017.

21. There was no evidence before the Tribunal that hardship would be caused by cancellation of the applicant Visa.

22. Nothing adverse is known about the applicant’s past and present conduct towards the department.

23. There are no persons in Australia whose visas would, or maybe, be cancelled unders.140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations and relevant international agreements that would be breached as a result of the Visa cancellation.

24. The Tribunal is satisfied that the applicant has a genuine intention of remaining enrolled in a registered course in completing his study in a registered course.

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

    DECISION

26. 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.

    Fiona Meagher
    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.