Le (Migration)

[2018] AATA 3576

Le (Migration) [2018] AATA 3576 (9 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi My Tram Le

CASE NUMBER:  1622258

HOME AFFAIRS REFERENCE(S):            BCC2016/3743539

MEMBER:Jason Pennell

DATE:9 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 573 Higher Education Sector visa.

Statement made 9 August 2018 at 12.23pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education sector) – Enrolment conditions – Prevented from enrolling in the Diploma of Accounting due to administrative error – Goal to complete Bachelor of Accounting – 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 21 December 2016 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.The delegate cancelled the visa on the basis that the applicant had not complied with a condition of the 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 31 May 2018 to give evidence and present arguments.  

4.The applicant was represented in relation to the review by her 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 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.

7.The applicant was granted a Student (Temporary)(class TU) Higher Education Sector (subclass 573) on 4 March 2014. She travelled to Australia on 13 March 2014 and initially undertook an English course. In 2015 the applicant enrolled in a certificate IV in Accounting. It was the applicant’s intention to enrol in a Diploma of Accounting in July 2016 but was prevented due to the fact that her education provider, RMIT had made a marking error in relation to one of her subjects. As such she was prevented from completing her Certificate IV in Accounting. As a result her enrolment in the Diploma of Accounting was not accepted in July 2016.

8.A Notice of Intention to Consider Cancellation (NOICC) dated 2 December 2016 was sent to the applicant advising that he was in breach of a condition of his visa and inviting her to respond to the NOICC. The delegate noted that the NOICC incorrectly recorded 3 March 2016 rather than 1 July 2016 as the last day on which the applicant had been enrolled in a registered course of study. The delegate confirmed that 1 July was the date on which the applicant had been last enrolled in a registered course of study. The delegate found that the fact the wrong date had been recorded in the NOICC was an administrative error and did not impact the applicant adversely and that the cancellation consideration could continue.

9.The Department received the applicant’s response to the NOICC on 8 December 2016 and 15 December 2016. The applicant did not dispute the grounds for cancellation but claimed that she had been prevented from enrolling in the Diploma of Accounting due to the fact that her education provider, RMIT, had made an error in recording that she had failed unit ACCT5384C, a subject she had in fact passed. The applicant provided the department with a copy of an email from RMIT dated 12 December 2016 in which it confirmed that the applicant had passed unit ACCT5384C and that her results would be amended accordingly. The email also confirmed that as a result of having passed the subject she was qualified to graduate from Certificate IV in Accounting.

10.In her response to the NOICC the applicant provided the following documents:

(a)  A confirmation of enrolment (CoE) for a Certificate IV in Accounting issued 12 March 2016.

(b)A copy of Academic History – Course list for certificate IV in Accounting TAFE dated 2 December 2016.

(c)Copy of email entitled ‘Email to Course Co-Ordinator 15 July 2016.

(d)Copy of email entitled ‘Emails with Mr Ben 11 November 2016 -27 November 2016.

(e)Copy of email entitled ‘Emails with Mr Ben 15 August 2016.

(f)Copy of email entitled ‘Emails with Mr Ben 15 July 2016 -26 July 2016.

(g)Copy of a document entitled ‘Grading Code.’

(h)Copy of a screenshot entitled ‘Mr Ben Sethia contact.’

(i)RMIT Change of Application RMIT Change of Application.’

(j)Copy of a screenshot entitled ‘Component score.’

(k)Copy of email dated 12 December 2016 with a document title of ‘Apply to graduate.’

11.The delegate cancelled the visa on 21 December 2016 on the basis that the applicant was in breach of condition 8202(2) of the grant of the visa by not being enrolled in a registered course of study from 1 July 2016.

Did the applicant comply with Condition 8202?

12.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).

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

14.On the evidence before the Tribunal it finds that the applicant was not enrolled in a registered course from 1 July 2016. Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

15.Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

Applicants purpose of traveling and staying in Australia.

16.During the course of the hearing the applicant confirmed that his intended purpose in traveling and staying in Australia was to study. While the applicant was not enrolled in a registered course from 1 July 2016, Provider Registration and International Student Management System (PRISMS) confirms that the applicant was enrolled in a Diploma of Accounting commencing 2 February 2017. It shows that the applicant deferred or suspended her studies on compassionate grounds on 11 September 2017 but recommenced her studies on 1 January 2018. The applicants provided result Academic History – Course List dated 16 May 2018 for her Diploma of Accounting. 

17.Therefore, despite her visa being cancelled on 21 December 2016 the applicant continued her studies having completed a Certificate IV in Accounting and Diploma of Accounting, in accordance with her original plan to obtain a Bachelor of Accounting qualification.    

18.In addition it appears that as a result of her education provider having incorrectly recorded her as having failed unit ACCT5384C, the applicant was prevented from enrolling in the Diploma of Accounting. In a letter dated 18 May 2017 the applicants education provider confirmed that this was a matter that was out of her control. By emails dated 12 December 2016 and 18 May 2017 the applicant’s education provider confirmed that she had passed unit ACCT5384C and that her results would be amended accordingly. It also confirmed that as a result of having passed the subject she was qualified to graduate from Certificate IV in Accounting and entitled to enrol in Diploma of Accounting.

19.Therefore, in circumstances where she was prevented from enrolling in the Diploma of Accounting due to an error caused by her education provider and the fact that she has continued her studies, the Tribunal accepts and finds that the applicants intended purpose in traveling and staying in Australia was to study.

Compliance with visa conditions

20.The applicant was not enrolled in a registered course from 1 July 2016. During that period the applicant remained in Australia and attempted to comply with the conditions of his visa. Due to an error by the applicant’s education provider she was prevented from enrolling in her intended registered course.  The Tribunal considers that applicant’s non-compliance with his visa conditions was a matter beyond her control and as such gives little weight in favour of the applicant in considering this factor.

The degree of hardship that may be caused to the Applicant. 

21.The applicant did not raise any specific matters of hardship in the hearing. However, in response to the Tribunals question as to any hardship she may suffer the applicant said that she would be prevented from achieving her goal of obtaining a Bachelor of Accounting. She said that the money that had already been expended by her family in relation to her education in Australia would be waisted in the event that her visa was cancelled.

22.Therefore, while the Tribunal acknowledges that the applicant will suffer some hardship in the event that his visa is cancelled, including the fact that her family have expended money for her living and education expenses in Australia. In addition, the Tribunal notes that in the event that her visa is cancelled, under s.48 of the Act she may have limited options available to her if applying for further visa in Australia. In addition she will be subject to Public Interest Criterion 4013 which means that she may not be granted a temporary visa for three years from the date of cancellation.

23.Therefore, the Tribunal accepts that if the applicant’s visa is cancelled she will suffer some hardship by having to return to Vietnam and as such has given some weight to hardship the applicant will suffer in the event his visa is cancelled in making its decision.

The circumstances in which the grounds for cancellation arose

24.The applicant claims that the breach of the visa condition arose due to circumstances beyond her control. The applicant’s education provider has confirmed that as a result of an error in recording the correct result of a subject the applicant was prevented from completing a Certificate IV in Accounting and being able to enrol in Diploma of Accounting. While the applicant may have been able to ensure that she was in compliance with her via conditions by enrolling in some other registered course, it is understandable that the applicant would press for the correct result to be recorded so that she could complete her intended studies in Australia. 

25.Accordingly, the Tribunal places weight on this consideration in the applicants favour.

Past and present behaviour of the applicant

26.The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

27.The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

28.Accordingly, the Tribunal places no weight on this consideration in the applicants favour.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

29.The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision. 

Other relevant factors

30.Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

31.Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

1. Considering the circumstances as a whole, the Tribunal concludes that the breach of the conditions of the applicant’s visa was beyond her control and as such her visa should not be cancelled.

   DECISION

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

   Jason Pennell
   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.