HUANG (Migration)

[2019] AATA 1908

HUANG (Migration) [2019] AATA 1908 (28 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yating HUANG

CASE NUMBER:  1718794

HOME AFFAIRS REFERENCE(S):           BCC2017/2284253

MEMBER:Michael Ison

DATE:28 March 2019

PLACE OF DECISION:  Melbourne

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 28 March 2019 at 5:26pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – maintained enrolment in a registered course – Confirmation of Enrolment not issued by University – signed International Student Course Agreements not returned – 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 14 August 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. Prior to the delegate’s decision to cancel the applicant’s visa, the delegate caused a Notice of Intention to Consider Cancellation of a Visa (NOICC) dated 2 August 2017 to be issued to the applicant. The NOICC informed the applicant that there was no evidence before the delegate of the applicant being enrolled in a registered course since 10 February 2017.

3. The applicant did not respond to the NOICC.

4. The delegate cancelled the visa on the basis that the applicant had failed to maintain her enrolment in a registered course in accordance with condition 8202(2) of Schedule 8 to the Migration Regulations 1994 (the Regulations). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant was represented in relation to the review by her registered migration agent.

6. 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

7. 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 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?

8. 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).

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

10. On 21 August 2017 the applicant applied to the Tribunal to review the decision of the delegate to cancel her Student (Subclass 573) visa.[1]

    [1] Tribunal file, folios 1-2.

11. The Tribunal received the following documents with that application:

    ·a two page written submission from the applicant’s registered migration agent;[2]

    [2] Tribunal file, folio 19.

    ·a one-page document from Monash College dated 16 August 2017 titled ‘Proof of Current Enrolment ’ which states that the applicant is enrolled in the Monash University Foundation Year – Extended course from 20 March 2017 to 21 June 2018;[3]

    ·an email dated 17 August 2017 from Monash University to the applicant advising that the University was only issuing her electronic confirmations of enrolment that day because the applicant had previously not returned her signed International Student Course Agreements. The letter stated the University had emailed the applicant on 28 April 2017 to remind her to return the acceptance form for the agreements so that the University could issue her confirmations of enrolment. The letter also states that the University’s 28 April 2017 email advised the applicant that without her confirmations of enrolment her Student visa may be affected;[4]

    ·a 14 page offer of enrolment in a Bachelor of International Business dated 19 August 2016;[5]

    ·a confirmation of enrolment for a Monash University Foundation Year – Extended course created on 15 August 2017 with a course commencement of 20 March 2017 and course end date of 31 May 2018;[6]

    ·a confirmation of enrolment for a Bachelor of International Business created on 15 August 2017 with a course commencement of 25 June 2018 and a course end date of 30 June 2020;[7]

    ·a statement of attendance dated 17 August 2017 from Monash College for the Monash English course stating that from 4 January 2016 to 10 February 2017 the applicant averaged an 85.94% class attendance rate for that course;[8]

    ·a statement of attendance dated 17 August 2017 from Monash College for the Monash University Foundation Year – Extended course stating that from 20 March 2017 to 20 June 2017 the applicant averaged an 87.36 % class attendance rate for that course;[9]

    ·an invoice from Monash University issued on 27 April 2017 showing a nil balance in fees owed and payment of $11,670 in fees for semester one of 2017 for the Monash University Foundation Year – Extended course;[10]

    ·an invoice from Monash University issued on 19 July 2017 showing a balance in fees owed of $12,795 for semester two of 2017 for the Monash University Foundation Year – Extended course;[11] and

    ·a colour photocopy of an extract of the applicant’s passport.[12]

    [3] Tribunal file, folio 15 (back).

    [4] Tribunal file, folios 15 (front) and 16 (back).

    [5] Tribunal file, folios 21 to 27.

    [6] Tribunal file, folio 17 (front).

    [7] Tribunal file, folio 20 (front).

    [8] Tribunal file, folio 18 (front).

    [9] Tribunal file, folio 18 (back).

    [10] Tribunal file, folio 20 (back).

    [11] Tribunal file, folio 17 (back).

    [12] Tribunal file, folio 16 (front).

12. Having reviewed these documents the Tribunal is satisfied that the documents show:

    ·the applicant was enrolled in a Monash University Foundation Year – Extended course from 20 March 2017 to 31 May 2018;

    ·the applicant’s class attendance rate for the Monash University Foundation Year – Extended course was 87.36% between 20 March 2017 to 20 June 2017;

    ·the applicant had paid her Semester One 2017 course fees in full; and

    ·at the time of the applicant’s application to the Tribunal the applicant had a further offer of enrolment in a Bachelor of International Business with the course to commence on 25 June 2018 and conclude on 30 June 2020.

13. The Tribunal finds that the applicant has maintained her enrolment in a registered course of study from 20 March 2017 up until the present and therefore has complied with condition 8202(2) of Schedule 8 to the Regulations.

14. The Tribunal notes the documents provided by the applicant indicate that at the time of the delegate’s decision on 14 August 2017 the applicant had not returned her course agreements to Monash University so Monash University had not been able to issue confirmation of enrolments to the applicant. This meant the Department’s records at that time did not show the applicant as being enrolled. In addition, the applicant did not reply to the NOICC issued on 2 August 2017 which was the applicant’s opportunity to explain her circumstances to the delegate.

15. The documents provided to the Tribunal by the applicant also indicate the applicant returned her signed course agreements to Monash University on or around 15 August 2017. Monash University then issued the confirmations of enrolment to the applicant that were created on 15 August 2017 for both the applicant’s Foundation Year course and her Bachelor degree course. It was only after receiving these confirmations of enrolment that the applicant applied to the Tribunal, on 21 August 2017, to review the decision of the delegate to cancel her Student visa.

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

17. 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.

    DECISION

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Michael Ison
    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.