Mcremson Papa (Migration)

[2018] AATA 811

Mcremson Papa (Migration) [2018] AATA 811 (9 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joel Mcremson Papa

CASE NUMBER:  1709206

DIBP REFERENCE(S):  BCC2017/716546

MEMBER:Tigiilagi Eteuati

DATE:9 March 2018

PLACE OF DECISION:  Brisbane

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 09 March 2018 at 3:11pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in registered course – Consideration of discretion – Change of studies – Illness experienced during studies – Limited education opportunities in home country – Hardship of cancellation outweighs grounds for cancellation

LEGISLATION

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

Migration Regulations 1994, Schedule 8, Condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 April 2017 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 delegate cancelled the visa on the basis that the applicant breached the condition of his Visa to remain enrolled in a registered course. 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 2 February 2018 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

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.

   Did the applicant comply with Condition 8202?

7. 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).

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

9. The delegate found that the applicant had failed to be enrolled in a registered course on 18 October 2014. This was admitted by the applicant and accords with records held by the Department. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

10. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

11. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

12. The applicant indicated that he had first been granted student visa in 2012 to study at secondary school in Australia. He was granted a second visa in 2013 and completed his secondary schooling in 2015.

13. The applicant was granted a subclass 573 visa in February 2016. He said that when he was granted that visa he was enrolled in a foundation course at QUT to be followed by a Bachelor of Engineering degree. The applicant said that the first foundation course ran from February 2016 to June 2016. He said that although he attended the course for its duration he did not pass the course. His enrolment in the Bachelor of Engineering degree was consequently cancelled on 13 July 2016. The applicant claimed that after he failed foundation course in the first semester of 2016, he re-enrolled in the foundation course in the second semester of 2016. The applicant indicated that although his performance improved in the second semester 2016, he was still unable to complete the course successfully by October 2016. The applicant said that at this point he decided that engineering wasn’t for him and decided to study business courses instead.

14. The applicant said that instead of re-enrolling in the QUT in the semester which began in late 2016, he travelled to Cairns to spend Christmas with his family. He acknowledged that he should have re-enrolled in the final semester of 2016 but said he felt deflated at having failed the foundation course twice and felt he needed a break from study.

15. The applicant said that he returned to Brisbane in January 2017 and that he applied for enrolment at QUT. He said that he was informed that there were no places left for his proposed course of study in the first semester 2017 but that he could commence study in the second semester 2017. After the hearing the applicant provided evidence that he had submitted an application form to QUT in February 2017 and paid the application fee. The Tribunal notes that the applicant’s attempt to enrol in 2017 was done prior to receiving the Notice of Intention to Consider Cancellation (NOICC) in March 2017. The applicant replied to the NOICC on the very day he received the NOICC.

16. After receiving the NOICC the applicant appointed a migration agent and enrolled in English language course. At the hearing the applicant admitted that he did not need to improve his English language skills but that he enrolled in that course in an attempt to avoid visa cancellation.

17. The applicant’s visa was cancelled on 20 April 2017. In June 2017, the applicant secured enrolment in a Diploma of Business course and a Bachelor of Business at QUT. The applicant gave evidence that the diploma course began in June 2016. After the hearing the applicant provided evidence from QUT of his current enrolment at that institution. He said that, during the second semester of 2017, he was doing well in the Diploma course although he had failed to submit two assignments. He said that he planned to make up for those assignments by sitting more heavily weighted exams later that semester.

18. The applicant gave evidence that in August 2017 he became severely ill and was admitted to hospital. He said that he was diagnosed with latent tuberculosis and spent a month in hospital. As a result he was unable to complete the first semester of his diploma course. After the hearing the applicant provided the Tribunal with a letter from the Gold Coast Health Service which substantiated the applicant’s claims and indicated that the applicant was undertaking ongoing treatment, that the applicant symptoms had settled but that the applicant still suffered from some ongoing shortness of breath.

19. The applicant said that this if visa remained cancelled he would be unable to complete a degree in Australia which he greatly desired to do. He said that his younger brother was about to attend boarding school in Australia and that he wanted to be in Australia to provide support to his younger brother. The applicant said that although it may be possible for him to undertake a tertiary education course in Papua New Guinea that the quality of tertiary education in Australia was far superior to that in Papua New Guinea and that there were very limited opportunities for tertiary study Papua New Guinea.

20. The Tribunal raised its concern that, as the applicant had failed the QUT foundation course twice, he may not have the ability to successfully undertake a degree course in Australia.

21. The applicant said that he had found it difficult to complete the course successfully because the environment at University was far less strict than the strict and structured environment that he had become accustomed to in boarding school. He admitted that he did not apply himself to the best of his abilities in that year.

22. The Tribunal raised its concern that, as the applicant had admitted that he had not tried his hardest to succeed while undertaking the foundation courses, and that he had failed to enrol in the final semester of 2016, he may not have the will or desire to successfully undertake a degree course in Australia.

23. The applicant admitted that he should have tried to enrol in the final semester of 2016 but repeated that he thought that he needed a break from study and to spend Christmas with his family and Cairns. He also indicated that his desire to study was evidenced by his attempts in early 2017 to re-enrol with QUT and that he did in fact commence a course of study in the second semester 2017 even though his visa had been cancelled at that point. He reiterated that the only reason that he did not complete the second semester of 2017 was because he was hospitalised with tuberculosis.

24. The Tribunal has decided to set aside the decision to cancel the applicant’s visa.

25. For the reasons mentioned above the Tribunal has some concerns about the applicant’s ability and desire to successfully undertake a bachelor’s degree in Australia.

26. However, the Tribunal cannot make a firm finding that the applicant does not have the ability to successfully undertake a business degree in Australia. First, the Tribunal accepts the applicant’s admission that he did not apply himself fully to his studies in 2016. The Tribunal accepts that the applicant was distracted by the freedom that the university environment presented which the Tribunal accepts would have been in great contrast to the strict disciplinary environment of his boarding school. The Tribunal is not suggesting that this excused the applicant’s failure to fully apply himself to his studies, but rather that it goes some way to explain that failure. The Tribunal has considered that when the applicant applied himself to his studies during high school he was able to successfully complete his studies.

27. In addition the Tribunal is not prepared to find that the applicant lacks the desire of the will to successfully undertake a degree course in Australia. Although the applicant failed to enrol in the final semester of 2016 he provided evidence that he applied for re-enrolment in February 2017 and the Tribunal accepts his explanation that he was told that he would have to commence enrolment in the second semester of 2017. The Tribunal does not place any weight on the applicant’s enrolment in the English course in April 2017 as it is clear, and the applicant has admitted, that he only enrolled in this course in order to avoid the cancellation of his Visa.

28. However, the Tribunal does place wait on the fact that the applicant enrolled in a Diploma of Business and a Bachelor of Business at QUT and began studying and attending classes in the Diploma course in the second semester of 2017 despite his visa being cancelled. It appears that that no “no study” condition attached to his bridging visa. The Tribunal accepts that the reason that the applicant was unable to continue his studies in the second semester of 2017 was because he was hospitalised with tuberculosis. The applicant is currently enrolled with QUT, his doctors have provided evidence that his condition has stabilised and the Tribunal accepts that the applicant strongly wishes to complete the diploma and degree courses.

29. The Tribunal has placed weight in the applicant’s favour on the fact that, should the applicant’s visa remain cancelled, he would be unable to apply for another student visa until 2020. The Tribunal has also placed weight on the very limited tertiary education opportunities available to the applicant in Papa New Guinea.

30. While the Tribunal has ongoing concerns as to the applicant’s ability to successfully complete his courses in Australia, the Tribunal considers that these concerns are outweighed by the applicant’s desire to successfully complete his courses and the hardship that he would suffer as if his visa remain cancelled.

31. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Tigiilagi Eteuati
    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.