He (Migration)

[2018] AATA 3526

He (Migration) [2018] AATA 3526 (7 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yilin He

CASE NUMBER:  1710003

HOME AFFAIRS REFERENCE(S):           BCC2017/909661

MEMBER:Rachel Westaway

DATE:7 August 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 571 Schools Sector visa.

Statement made on 07 August 2018 at 1:08pm

CATCHWORDS

Migration – Cancellation – Student (Temporary)(Class TU) – Subclass 571 (Schools Sector) – Course enrolment – Administrative error by the school – Certificate of Enrolment and academic results supplied by the school – 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 8 May 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 571 Schools 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 was not 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 Tribunal has progressed to make a decision on the matter without a hearing based on the evidence before it.

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’s visa was cancelled on 8 May 2017. The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of the visa on 18 April 2017. The applicant did not respond and the delegate proceeded to cancel the visa.

9. The applicant applied for review of the decision with the Administrative Appeals Tribunal. In appealing for review, the applicant supplied a letter from Kilvington Grammar school dated 9 May 2017 stating that the applicant has been enrolled at the school since July 2016 and is studying year 11 and progressing successfully. The letter stated that the school had made an administration error and a Certificate of Enrolment (CoE) was not issued[1]. The CoE was also supplied.[2]

   [1] Tribunal File, Folio 6

   [2] Ibid, Folio 7

10. On 12 May 2017 the applicant and her School’s Head of Admissions presented at the counter. It was explained that the applicant had not updated her contact details which is why she missed the NOICC and was in the middle of exams and the cancellation has come as a shock. The Head of Admissions also stated that the applicant was hoping to visit her parents over the holidays. The case was given priority status.

11. On 16 May 2017 a case note on the Tribunal file was made that a registry person had contacted the school requesting relevant evidentiary material[3].

    [3] Ibid, Folio 10

12. A submission was made to the Tribunal[4] dated 24 May 2017 which contained the following material:

    ·    A letter of confirmation from the school confirming the applicant has been enrolled since July 2016.

    ·    A Certificate of Enrolment

    ·    A letter from the Applicant confirming her enrolment and participation at school

    ·    A letter from the school psychologist explaining the distress of the cancellation and her inability to return home to China and see her family.

    ·    A copy of the Applicant’s school report and grades which were all strong.

    ·    Copies of receipts of school fees paid by the applicant’s parents.

    [4] Ibid, Folio 1911-19

13. On the evidence before the Tribunal, the applicant was enrolled in a registered course. Accordingly, the applicant has complied with condition 8202(2).

14. 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.

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

    DECISION

16. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 571 Schools Sector visa.

    Rachel Westaway
    Senior 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.