Park (Migration)

[2019] AATA 4313

Park (Migration) [2019] AATA 4313 (20 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Rina Park

CASE NUMBER:  1722785

HOME AFFAIRS REFERENCE(S):           BCC2017/2638010

MEMBER:Michael Biviano

DATE:20 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 20 September 2019 at 4:47pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – did not provide update COE – updated COE provided upon review – 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 September 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 delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study from 31 December 2016 and she was not compliant with condition 8202 of the visa. The delegate went on to consider the factors in favour of cancellation outweighed those against cancellation. 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 13 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

4. Prior to the hearing the applicant filed detailed submissions with supporting documentation, which the Tribunal found were most useful in ascertaining whether the applicant was enrolled in a registered course during 2017.

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 she was not enrolled in a registered course.

9. The decision record of the delegate of the Department of Immigration and Border Protection dated 21 September 2017, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the Student (Temporary) (Class TU) (Subclass 573) visa, which was granted on 27 March 2015, and gives reasons for the cancellation (Decision Record). The Decision Record confirmed that the applicant was not enrolled in a registered course from 31 December 2016.

10. The applicant gave evidence that she had previously been enrolled in the Diploma of Interior Design and Decoration at Central Institute of Technology and on 27 January 2015 she obtained the Diploma. The applicant tendered a Confirmation of Enrolment Certificate (CoE) for the course and the diploma certificate.

11. On 20 February 2015, the applicant enrolled in a Bachelor of Design in Interior and Spatial Design at the University of Technology, Sydney (UTS) which was to commence on 23 February 2015 and conclude on 31 December 2017. The applicant tendered a CoE for that course.

12. On 3 August 2015, the applicant was released by UTS and on the same day she enrolled at Edith Cowan University (ECU) to study a Bachelor of Creative Industries, which was to commence on 27 July 2015 and expected to conclude on 15 July 2017. The applicant tendered as evidence CoE number 74944345 (First CoE). The applicant was to receive exemptions from the subjects studied in her prior courses.

13. On 22 October 2015, the applicant’s course at ECU was shortened again due to further exemptions provided to her from previous studies and it was expected to conclude on 31 December 2016.  The applicant tendered as evidence CoE number 74FF7D72 (Second  CoE), which confirmed that change to her enrolment.

14. As at July 2016, the applicant had passed eight of eight units studied in the Bachelor of Creative Industries degree. However, due to work and study pressures, she decided to reduce her study load and applied to ECU for a reduced study load, which was granted, enabling her to study three units in semester 2 of 2016 and one unit of Professional Placement in semester 1 of 2017. ECU granted the extension with the effect that her course was to conclude on 15 July 2017.

15. The applicant gave evidence that she undertook studies in semester 2 of 2016 and semester 1 of 2017 and tendered her academic transcript into evidence, which confirms that the applicant studied three subjects in semester 2 of 2016 and one subject in semester 1 of 2017.

16. It appears that ECU records were not updated to the extent that the PRISMS records relied on by the Department revealed that the applicant was no longer enrolled from 31 December 2016. The Department, understandably relying on the PRISMS records, wrote to the applicant on 7 August 2017, providing a notice of intention to consider cancellation of the visa (NOICC) and asking the applicant to respond.

17. The applicant, on receiving the NOICC and speaking to the representative at the Department to explain that she had attended ECU through to July 2017 to complete her studies in the bachelor’s degree, attended ECU and obtained a print out of her updated CoE. Unfortunately, she was provided with the First CoE issued by ECU, which, while accurate as to her dates of study, had been superseded by the Second CoE.

18. The applicant’s visa was then cancelled on 21 September 2017 and, based on the information before the Department, it is understandable how such decision was made.

19. However, since the cancellation the applicant provided further evidence which supports her claims that she was studying and enrolled for the period from 1 January 2017 to 15 July 2017 at ECU in the Bachelor of Creative Industries, including:

    a.On 2 September 2019, ECU wrote to the applicant confirming that the applicant had completed the course on 13 July 2017;

    b.The academic transcript from ECU confirming that the applicant studied in semester 1 of 2017; and

    c.The CoE number 92426A16 (Third CoE), which confirmed that she was enrolled in the bachelor’s degree at ECU between 27 February 2017 and 15 July 2017.

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

21. As the applicant has not failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) does not arise. It follows that the visa cannot be cancelled.

    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.

    Michael Biviano
    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.