Kyaw (Migration)

[2017] AATA 943

Kyaw (Migration) [2017] AATA 943 (31 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kaung Pyae Aung Kyaw

CASE NUMBER:  1611826

DIBP REFERENCE(S):  BCC2016/2262789

MEMBER:David McCulloch

DATE:31 May 2017

PLACE OF DECISION:  Sydney

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 31 May 2017 at 11:22am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – Bachelor of Engineering enrolment delayed not cancelled – Delayed finish to earlier Diploma of Engineering course – Delegate considered Diploma as not a Higher Education course – Applicant was enrolled at time of cancellation – No ground for cancellation

LEGISLATION

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

Migration Regulation 1994, Schedule 2, cl 573.223(1A), cl 573.231, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 July 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Myanmar born on 14 March 1994.  The visa subject to cancellation was granted on 19 March 2013, for a stay period until 15 March 2018. The visa was subject to condition 8516.

3. The Department sent to the applicant on 14 July 2016 a Notice of Intention to Consider Cancellation of the visa (NOICC).  The applicant responded to the NOICC in writing.

4. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with a condition of the visa, namely condition 8516. 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 Tribunal has determined the matter on the papers in the applicant’s favour without conducting a hearing, given clear evidence that the ground for cancellation has not been made out.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

8. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the visa. Condition 8516 states that: ‘The holder must continue to be a person would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa’.

9. In respect to the applicant’s visa she was required to meet, amongst other criteria, subclauses 573.231 or 573.223(1A), which provide as follows:

   573.231

   If subclause 573.223(1A) does not apply:

   (a)the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

   (b)the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

   (i)made under regulation 1.40A; and

   (ii)      in force at the time the application was made.

   Regulation 1.04A

   The relevant instrument made under regulation 1.04A provides the following courses as the types of courses for subclass 573 Student visas:

   Diploma (Higher Education)
   Advanced Diploma (Higher Education)
   Bachelor Degree
   Graduate Certificate (Higher Education)
   Graduate Diploma (Higher Education)
   Associate Degree
   Masters by Coursework

   573.223(1A)

   If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

   (a)      the applicant gives the Minister evidence that the applicant has:

   (i)      a level of English language proficiency that satisfies the applicant’s eligible education provider; and

   (ii)      educational qualifications required by the eligible education provider; and

   (b)      the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)      the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii)      any other relevant matter; and

   (c)      the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

   (i)      the costs and expenses required to support the applicant during the proposed stay in Australia; and

   (ii)      the costs and expenses required to support each member (if any) of the applicant’s family unit.

   eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

   (a)      the applicant is enrolled in a principal course of study for the award of:

   (ia)    an advanced diploma in the higher education sector; or 

   (i)      a bachelor’s degree; or

   (ii)      a masters degree by coursework;

   (b)      the principal course of study is provided by an eligible education provider;

   (c)      if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

   (i)      the applicant is also enrolled in that course; and

   (ii)      that course is provided by the eligible education provider or an educational business partner of the eligible education provider

10. There is no evidence that the applicant is an eligible higher education student.

11. The decision of the delegate, which was provided by the applicant to the Tribunal, indicates that, according to the Provider Registration and International Student Management System (PRISMS), it appears that the applicant was no longer enrolled, from 21 March 2016, in a Bachelors degree or Masters degree course and the applicant is not enrolled in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A.

12. Based on this information it appeared to the delegate that the applicant had not continued to be a person who would satisfy either subclauses 573.231 or 573.223(1A).  Accordingly, it appeared that the applicant had not continued to be a person who would satisfy the primary criteria for the grant of the visa and had not complied with condition 8516.

13. The Tribunal notes the following. PRISMS indicates that the applicant ceased to be enrolled in a Bachelor of Engineering on 21 March 2016 due to non-commencement of studies. In the response to the NOICC, the applicant indicated that he did not finish his Diploma course in time to commence the Bachelor course. PRISMS indicates that the applicant was enrolled in a Diploma of Engineering from June 2015 until 6 October 2016 (with a short gap in enrolment from 5 February 2016 until 29 February 2016). Although the PRISMS record indicates that that enrolment was cancelled (but with no indication of the date of cancelation), the education provider provided information to the Tribunal indicating that the applicant completed the requirements for the Diploma at the end of session 3, 2016 and his enrolment was not cancelled.

14. The Tribunal considers that the likely basis on which PRISMS indicates that the Diploma of Engineering was cancelled was due to the cancellation of the visa on 22 July 2016.  However, the education provider did not cancel the enrolment and has indicated that the applicant completed his studies. The Tribunal considers that at the time of the cancellation of the visa that the applicant was enrolled in the Diploma of Engineering.

15. The delegate clearly proceeded on the assumption that the Diploma of Engineering was not a higher education sector course as provided for in Regulation 1.04A.  However, the Confirmation of Enrolment indicates that the Diploma of Engineering from 29 February 2016 is a Diploma (Higher Education). As indicated above, such a course is a course listed as a type of course for a subclass 573 Student visa.

16. Accordingly, at both the time of the NOICC and the time of the cancellation of the visa the applicant was enrolled in a higher education sector course as required by condition 8516 and subclauses 573.231 or 573.223(1A).

17. That means that the applicant has not failed to satisfy the primary or the secondary criteria, as the case requires, for the grant of the visa, and therefore there has been no breach of condition 8516.  On that basis, the ground for cancellation has not been made out.

18. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

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

    David McCulloch
    Member