Park (Migration)

[2019] AATA 2414

Park (Migration) [2019] AATA 2414 (17 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Minsoo Park

CASE NUMBER:  1817972

HOME AFFAIRS REFERENCE(S):           BCC2018/1056635

MEMBER:Dr Colin Huntly

DATE:17 April 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 17 April 2019 at 11:19am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – not a genuine student – details of enrolment with relevant registered provider – adequate evidence in support of his claims – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994, Schedule 2,

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 June 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1(fa)(i)) on the basis that he was not, or was likely not to be, a genuine student. 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 was represented in relation to the review by his registered migration agent.

4. 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

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s. 116(1(fa)(i)). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(fa) - not a genuine student

6. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

7. The Tribunal has reviewed the delegate’s record of decision, the departmental file, and the applicant’s response to the notice of intention to consider cancelling the visa. 

8. It is apparent from the foregoing evidence that the applicant had difficulty in adjusting to the program of study originally selected when he applied for his subclass TU 572 visa, namely certificate and diploma courses in business and marketing.  In addition, the Tribunal notes that the applicant initially sought (and was granted) compassionate deferment of his studies in his original education provider on the grounds that his mother had died.  When the applicant did not return to his studies, his course of study was cancelled.

9. The Tribunal notes that the applicant’s father was, at that point residing Perth, Western Australia, and was himself present in this country on a Student visa, studying theology-related courses at Dynamic Education Group Pty Ltd, a registered provider.

10. The Tribunal notes that the applicant has provided adequate evidence in support of his claims that, shortly after moving to live with his father in Perth, he enrolled in courses of study in theology at the same registered provider as his father.

11. The Tribunal notes that the applicant provided the Department with details of his enrolment with the relevant registered provider to the Department in his response to the notice of intention to consider cancellation of the visa.  The Tribunal notes that these details are referred to in the Decision Record of the delegate dated 15 June 2018.

12. On the basis of the foregoing, the Tribunal finds that the ground for cancellation of the visa does not exist.  The applicant has provided ample evidence to support the premise that he is a genuine student. The Tribunal is also not satisfied that there is sufficient evidence to satisfy a reasonable decision-maker that the applicant was not a genuine student at the time the decision to cancel was made.

    Consideration of discretion / conclusions

13. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1(fa)(i)) exists. It follows that the power to cancel the applicant’s visa does not arise. decision

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Dr Colin Huntly
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.