Liu (Migration)

[2017] AATA 2700

Liu (Migration) [2017] AATA 2700 (3 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Di Liu

CASE NUMBER:  1611931

DIBP REFERENCE(S):  BCC2016/1911523

MEMBER:David McCulloch

DATE:3 July 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 03 July 2017 at 1:07pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a registered course – Confirmation of Enrolment – Subject failure – Additional study time

LEGISLATION

Migration Act 1958, s 116

Migration Regulations 1994, Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 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(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a national of China born on 12 October 1992.  The visa that has been cancelled was granted on 28 January 2015 for a stay period until 15 March 2018. That visa was subject to condition 8202.

3. On 14 July 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from 27 February 2015.  The applicant provided a written response to the NOICC.  On 27 July 2016, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

4. The issue in the present case is whether the ground for cancellation is made out.

5. The applicant appeared before the Tribunal on 13 June 2017 to give evidence and present arguments. The applicant was represented by his 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 and substituted with a decision that the visa not be cancelled.

   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 been certified by his or her education provider, as 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. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study since 27 February 2015.

11. There is nothing before the Tribunal to suggest that the applicant was a holder of a subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

12. Detailed submissions and supporting documents were provided by the applicant’s representative to the Tribunal indicating that the applicant had not, in fact, ceased to be enrolled in a registered course of study since 27 February 2015.

13. A Confirmation of Enrolment is provided from the University of Technology Sydney (UTS) indicating that the applicant was enrolled in a Bachelor of Science in Information Technology from 23 February 2015 until 31 December 2016. The Confirmation of Enrolment was created on 10 August 2016. In the comments section in the document it indicates that the applicant initially started the course in autumn 2013 and requested additional time to complete the course due to reduced study load approval and subject failure. It indicates that the course start date on the Confirmation of Enrolment is backdated to confirm the applicant’s enrolment from autumn 2015 to spring 2016. It indicates that the applicant had paid the tuition fee of $36,212 from autumn 2015 until now.

14. Documents provided from UTS confirm payment of tuition fees and that the applicant undertook courses, including from the autumn session of 2015. Documents indicate that the applicant completed the Bachelor degree with the official result release date of 9 February 2017.

15. The information from the Provider Registration International Student Management System (PRISMS) available to the delegate indicated that the applicant was not enrolled in a registered course as at 27 February 2015 (due to notification of cessation of studies in a Bachelor of Business which was yet to commence). However, the information before the Tribunal satisfies the Tribunal that the applicant was in fact enrolled in the Bachelor of Science in Information Technology as that 23 February 2015 even though the Confirmation of Enrolment had not been issued at that point in time and thus not reflected in PRISMS. It is clear that the applicant was studying this course from that point in time and had paid relevant fees.

16. On that basis, the ground of cancellation has not been made out and the applicant was not in breach of condition 8202(2) as claimed in the decision of the delegate.

17. The Tribunal notes that in the response to the NOICC the applicant seemed to acknowledge that he had failed to be enrolled in a registered course and explained this due to mental health issues. The applicant provided no indication that he was in fact studying a Bachelor of Science in Information Technology.

18. In the submission by the applicant’s representative to the Tribunal it is indicated that this information was provided by the applicant’s former migration agent and that the agent made submissions that did not reflect the applicant’s circumstances, notwithstanding that the applicant told the agent of his circumstances. This explanation was repeated by the applicant in the hearing. Based on clear evidence that the applicant was in fact studying the Bachelor of Science in Information Technology, the Tribunal accepts this explanation.

19. The Tribunal notes that the applicant provided evidence to the Tribunal that he is currently enrolled in an Advanced Diploma of Translating commencing on 27 May 2017 finishing on 12 November 2017. This does not appear to be a registered course and does not appear in the applicant’s PRISMS record. Further, it does not appear to be a registered higher education sector course in which the applicant is required to be enrolled as a consequence of condition 8516. There is no other evidence that the applicant is enrolled in such a course.

20. If this enrolment situation remains, if the visa were to be reinstated, the applicant would be in breach of both conditions 8202 and 8516. Whilst this does not change the fact that the ground of cancellation has not been made out, it makes the applicant liable to having the visa cancelled again on reinstatement. This was highlighted to the applicant in the hearing. The applicant’s representative submitted that the applicant had not enrolled in requisite courses because he did not want to incur tuition expenses with uncertainty about the validity of the visa.

21. The Tribunal indicated to the applicant in the hearing that its inclination was to set aside the decision to cancel the visa. The Tribunal indicated to the applicant, however, that he ran the risk of having the visa cancelled again on reinstatement unless the current enrolment situation was rectified.

    DECISION

22. 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

    
    

    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.