Liang (Migration)

[2019] AATA 5974

Liang (Migration) [2019] AATA 5974 (18 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zijian Liang

CASE NUMBER:  1726287

HOME AFFAIRS REFERENCE(S):          BCC2017/2637182

MEMBER:Elizabeth Tueno

DATE:18 September 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 18 September 2019 at 10:31am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education – Bachelor of Design – enrolled in registered course – did not complete same course for which visa granted – completed different course at same level earlier than planned – 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 25 October 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. The applicant is a 28 year old Chinese national.  He applied for a student visa on 28 June 2012 for the purpose of studying a Diploma of Design (visual communication) commencing on 4 June 2012 and a Bachelor of Design in Fashion and Textiles commencing in 17 February 2014.  At the time of the visa application in 2012, the Bachelor degree was a 4 year course ending on 31 December 2017 at the University of Technology Sydney.  The student visa was valid until 15 March 2018. 

3. On 25 October 2017, the delegate cancelled the visa on the basis that applicant had not complied with condition 8202(a) in that he had not been enrolled in a registered course since 31 December 2016.  The delegate was not satisfied that the grounds for not cancelling the visa outweighed the grounds for cancelling it.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 18 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The applicant was represented in relation to the review by his registered migration agent, Mr Ivan Rados, although he did not appear at the hearing.

5. The only documents provided to the Tribunal by the applicant were two emails that had been sent by his migration agent to the Department 2 February and 9 October 2017 and a third email send to an “Alan” on 18 October 2016 regarding condition 8105 work limitation (primary visa holders).  However, the Tribunal has reviewed the Department’s file, which contains a number of documents submitted by the applicant which the Tribunal has taken into account including, inter alia:

   ·Legal submissions prepared by Mr Ivan Rados dated 12 October 2017;

   ·Legal submissions prepared by Mr Ivan Rados dated 3 October 2017;

   ·Confirmation of Enrolments for all the Applicant’s enrolled courses;

   ·The applicant’s marriage certificate dated 19 July 2017;

   ·Psychologist’s report dated 6 October 2017;

   ·Statement by the applicant dated 17 October 2017; and

   ·Bachelor of Design in Interior and Spatial Design from University of Technology Sydney dated 23 March 2017.

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 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?

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. As noted above, the applicant was enrolled in Diploma of Design (visual communication) commencing on 4 June 2012 and a Bachelor of Design in Fashion and Textiles commencing in 17 February 2014.  At the time of the visa application in 2012, the Bachelor degree was a 4 year course ending on 31 December 2017 at the University of Technology Sydney.  The student visa was valid until 15 March 2018. 

11. In 2013, the University of Technology Sydney changed the Bachelor of Design in Fashion and Textiles from a 4 year to a 3 year course.  This meant the applicant would complete the course on 31 December 2016. 

12. Prior to the applicant commencing the Bachelor of Design in Fashion and Textiles course, he changed to a Bachelor of Design in Interior and Spatial Design at the University of Technology Sydney.  This course commenced on 10 February 2014 and ending on 31 December 2016, the same date that the Bachelor of Design in Fashion and Textiles course was to be completed by. 

13. The applicant went on to complete the course and on 23 March 2017 was admitted to the degree of Bachelor of Design in Interior and Spatial Design by the University of Technology Sydney.

14. On 15 June 2017, the applicant applied for job as an interior designer.  He was the successful job applicant and was offered full time employment in regional Australia.  He then applied for a Subclass 187 visa seeking permission to work in regional Australia for that employer. 

15. In his submissions dated 12 October 2017, Mr Rados referred to PAM3 – Migration Regulations-Schedules-Sch2Visa500-Student, which provides as follows:

    If a student visa holder completes their course of study and applies in Australia for a permanent visa, they will be granted a Bridging A visa (BVA) in association with the application.  The BVA, however, will not come into effect until the student visa ceases.  Therefore, the applicant remains subject to student visa conditions until such a time as their visa ceases, or they are granted the permanent visa.

    The following guidelines provide advice for officers in relation to dealing with students who remain on a student visa while awaiting an outcome of a migration application.

    The general principal is that:

    ·Students who complete the full course of study for which they were granted a student visa will remain on a student visa

    ·Visa cancellation and subsequent bridging visa applications should be considered for students who do not complete the full course of studies for which they were granted the visa.

    The following 2 scenarios illustrate the policy approach:

    Scenario 1: If the student finishes the principal course for which they were granted the visa as schedules, or earlier than planned, and applies for a permanent visa:

    ·The student to be allowed to remain on student visa, even if not intending to undertake any further studies

    ·If an SCV is issued for early completion, the visa should not be cancelled. 

    …

16. The Tribunal concurs with the applicant’s submissions that Scenario 1 outlined above applies to the applicant’s circumstances.  Although he did not complete the same course for which he was granted the visa, the applicant did comply with condition 8202 by successfully enrolling in and completing a course at the same level for which he was granted the student visa, namely a Bachelor degree.  The applicant completed the course earlier than planned and had applied for a permanent visa that would allow him to work in Australia.  According to the guidelines, the applicant should have been allowed to remain on the student visa, even if he was not intending to undertake any further studies, which appears to have been the case. 

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

18. As the applicant has not failed to comply with the visa condition, the ground for cancellation

    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.

    Elizabeth Tueno
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202     (1)  The holder must be enrolled in a full‑time course of study or training if the holder is:

    (a)  a Defence student; or

    (b)  a Foreign Affairs student; or

    (c)  a secondary exchange student.

    (2)  A holder not covered by subclause (1):

    (a)  must be enrolled in a full‑time registered course; and

    (b)  subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)  must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)  A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)  is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)  changes their enrolment to a course at the Australian Qualifications Framework level 9