DING (Migration)

[2017] AATA 1259

DING (Migration) [2017] AATA 1259 (27 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GUANGXIN DING

CASE NUMBER:  1700932

DIBP REFERENCE(S):  BCC2016/3647741

MEMBER:Tigiilagi Eteuati

DATE:27 July 2017

PLACE OF DECISION:  Brisbane

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 27 July 2017 at 12:18pm

CATCHWORDS

Migration – Cancellation – Subclass 573 Higher Education Sector visa – Enrolment in registered course – Delay in completing English course – Bachelor’s degree completed in requisite time – Intention to enrol in Master’s course

LEGISLATION

Migration Act 1958, s 116

Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 January 2017 made by a delegate of the Minister for Immigration 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 breached the condition of his visa to be enrolled in a registered course. 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 19 July 2017 to give evidence and present arguments.

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.

   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 Minister’s delegate found that the applicant had not been enrolled in a registered course since 30 June 2016. This accords with records held by the Department and the issue was also conceded by the applicant.

10. 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

11. 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.

12. 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).

13. The applicant explained that he arrived in Australia in July 2013 and began an English language course which he was meant to complete by February 2014. When he arrived in Australia he also held COEs for a Bachelor of Digital Media and a Master’s of Arts in Visual Arts with Griffith University. The applicant was originally meant to begin the Bachelor’s degree in March 2014 and finish that degree in December 2015. He was then meant to begin the Master’s degree in February 2016 and finish in December 2016. His visa was to expire in March 2017.

14. However, the applicant was unable to complete his English language course by February 2014 and instead completed the course in May 2014. This pushed the starting time for the Bachelor’s degree back until the second semester 2014. This, in turn, meant that the applicant completed his Bachelor’s degree in mid-2016 rather than late 2015. This meant that the applicant did not begin his Master’s course in early 2016 as planned.

15. The applicant said that after he had completed his Bachelor’s degree in mid-2016 he planned to enrol in a Master of Business Administration (MBA) degree in the second semester of 2016. He said that he spoke to an education agent who indicated that he may be able to obtain the applicant a COE with QUT for an MBA. The applicant said that the agent was unable to secure him a place at QUT and instead in August 2016 he informed the applicant that he had to leave Australia on urgent family business and could no longer assist the applicant. By this stage the applicant had missed his opportunity to be enrolled in an MBA in the second semester of 2016. He said that he sought the assistance of another education agent who indicated that he was not eligible for the QUT MBA course but may be eligible for the MBA course at the Holmes Institute. The applicant indicated that before he was able to obtain a COE from Holmes institute he received a Notice of Intention to Consider Cancellation (NOICC) from the Department.

16. The applicant indicated that he wishes to complete an MBA course in Australia in order to assist in running his parents’ business in China.

17. Unlike most cases involving cancellation for breach of condition 8202, in this case, the applicant completed his Bachelor’s degree. The reason that he was not enrolled in a registered course was that he finished his Bachelor’s degree half a year after he was meant to and this meant that he could not start his Master’s degree as planned in early 2016. The applicant gave evidence as to why he was unable to enrol in the second semester of 2016, that he had relied upon representations of an education agent who was later unable to deliver on his promise to enrol the applicant in an MBA at QUT. By the time this was discovered, it was too late for the applicant to undertake study in the second semester of 2016. The Tribunal accepts these explanations.

18. The Tribunal notes that if the applicant’s visa remains cancelled, he will be prevented from being granted another student visa for three years by operation of public interest criterion 4013. The Tribunal considers that it is counterproductive and unfair to prevent the applicant from being permitted to apply for another student visa for three years in circumstances where, since his arrival in Australia in 2013, the applicant has completed his English language course and his Bachelor’s degree and is seeking to undertake a Master’s degree as was his original intention. The applicant obviously has the desire and ability to successfully undertake higher education courses as evidenced by his completion of his Bachelor’s degree. The delay in completing his courses was because he required additional time to complete the English language course not the Bachelor’s degree, which he completed in the time allocated for completion of the course.

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 applicant’s Subclass 573 Higher Education Sector visa.

    Tigiilagi Eteuati
    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.