PONTINES (Migration)

[2019] AATA 6754

PONTINES (Migration) [2019] AATA 6754 (30 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss LADY LERAH ORIGINES PONTINES

CASE NUMBER:  1800946

HOME AFFAIRS REFERENCE(S):          BCC2017/3197958

MEMBER:Peter Booth

DATE:30 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 572 Vocational Education and Training Sector visa.

Statement made on 30 September 2019 at 1:48pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances giving rise to non-enrolment – delay by course provider – beyond the applicant’s control – 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 10 January 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(1)(b) of the Migration Act 1958 (the Act).

2.    The delegate cancelled the visa on the basis that the applicant did not satisfy condition 8202 (2) (a). 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 24 September 2019 to give evidence and present arguments.

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. 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?

6.    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).

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

8.    The delegate found that the applicant was not enrolled in a registered course of study between 12 March 2017 and 2 June 2017. At the hearing the applicant affirmed the correctness of this finding. 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

9.    Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

1. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the departmental guidelines which cover matters such as:

   ·     The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

   The applicant arrived in Australia on 3 June 2013 is the holder of a Subclass 572 (Student) visa. The applicant said that her intended course of study was an Aged Care Certificate, Business Certificates III and IV and then to undertake Commercial Cookery classes. The applicant gave no evidence as to whether she had a compelling need to travel to or remain in Australia.

   ·     The extent of compliance with visa conditions

   The applicant affirmed that she was not enrolled in a registered course of study between 12 March 2017 and 2 June 2017.

   ·     Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

   The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

   ·     Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

   The applicant gave evidence that she completed a Certificate III in Aged Care on 12 June 2014, a Certificate II in Business on 8 March 2015, a Certificate III in Business Administration on 10 January 2016, a Certificate III in Commercial Cookery on 12 March 2017, a Certificate IV in Commercial Cookery on 8 April 2018 and is currently studying an Advanced Diploma of Hospitality due to be completed on 5 April 2020. She provided various documents to demonstrate completion of the courses described above and a Confirmation of Enrolment document (COE) in respect of the course which she is currently studying. The Tribunal enquired what she had done between 12 March 2017 and 10 July 2017, the dates which the delegate found, and the applicant had agreed, were the dates when she was not enrolled. The applicant said that she was looking for a new course, apparently at a cheaper price and that she did this around 14 March 2017. The new course providers insisted on proof of completion of the Certificate III course. She said that on 3 May 2017 she emailed the previous school asking for the Certificate of Completion of the Certificate III Commercial Cookery course. She was informed, she said, about that time and that she had not completed all the relevant assessments. Indeed she said that she was told she had failed some of the subjects.

   On 5 May 2017 she returned to the school and “did assessments”. Thereafter when she contacted the course provider she was informed that these further assessments could not be located. In the event she said that she was told to wait for “five weeks” for the Certificate. During this period, she was apparently looking for new courses but they were “not available”. She said that she enrolled in an “English course” on 5 June 2017. The Tribunal enquired whether she had had a COE document relevant to the course. She said that she had such a document but it was not currently in her possession. The Tribunal invited her to provide the document by the close of business on 24 September 2019. She said that she started the Certificate IV course in Commercial Cookery on 10 July 2017 and also had a COE document for that course. She did not have the document in her possession at the hearing and, at the Tribunal’s invitation, said she would provide it by 24 September 2019. The Tribunal observed that she had provided a letter or a submission to the Tribunal dated 12 January 2018 which provided a general narrative of the events surrounding reassessment in the Certificate III course. Amongst other things, the Tribunal observed that the letter stated she did not receive the Certificate in respect of the Certificate III course until 13 June 2017. The Tribunal observed that the Certificate was dated 11 April 2017. She was asked to explain when she received that Certificate. The applicant said she did not receive the Certificate until about 13 June 2017. She added that that she went “to the school to get it” and that she “had to pay $20”. In answer to an enquiry from the Tribunal she said this occurred between 11 and 13 June 2017. The Tribunal enquired why she went to the course provider at that time. She said that she had been told on about “9 or 10 June 2017” that the Certificate was ready. The Tribunal enquired whether she had been in contact with the course provider prior to that time seeking production of the Certificate. She said that she had.  Indeed she had sent an email to the course provider asking if the Certificate was ready shortly before “9 or 10 June 2017”. The Tribunal invited the applicant to produce the email together with any response from the course provider. The applicant said she had the emails that they were not in her possession at the hearing but that she would produce them to the Tribunal after the completion of the hearing. The Tribunal enquired whether she could explain why it took so long for the Certificate to be provided if it was created on 11 April 2017. The applicant responded, in effect, that she was told that it would take about five weeks for it to be completed and that she had waited for the five weeks before she had enquired as to the availability of the Certificate. After completion of the hearing the applicant provided several documents to the Tribunal as follows:

   o   First, a COE in a Certificate III course in Commercial Cookery due to start on 29 February 2016 and to be completed on 12 March 2017.

   o   Secondly a COE in a Certificate IV course in Commercial Cookery due to start on 10 July 2017 and be completed on 8 April 2018.

   o   Thirdly, a COE in an English for Academic Purposes course due to start on 5 June 2017 and be completed on 16 June 2017.

   o   Next, an email dated 25 May 2017 to Australia Institute enquiring whether “my cert 3 is already been done. It’s been three weeks since I’ve submitted all my assessments now. I can’t enrolled to other school if I don’t have cert 3. I don’t have any receive feedback from you.”

   o   An email dated 15 June 2017 from Australia Institute stating “your graduation Certificate for III in Commercial Cookery is ready and I request you to collect”.

   o   Lastly an email from the applicant to Australia Institute dated 3 April 2017 stating “I already finished my studies at aite I just want to asked if when I can get my Certificate 3”. It appears that the Certificate of Completion of the Certificate III course was not available until 15 June 2017 notwithstanding that it is dated 11 April 2017 although the reason is not readily apparent. The Tribunal accepts the applicant’s evidence that she returned to the course provider after March 2017 to complete some further assessments and that process took some time to be resolved by the course provider. The reason for the delay by the course provider is not apparent however the Tribunal accepts that this was beyond the applicant’s control. Accordingly the Tribunal finds that the period of time within which the applicant was not enrolled in a registered course of study was not as a result of factors within the applicant’s control.

   ·     Past and present behaviour of the visa holder towards the department

   There was no evidence in relation to this factor and the Tribunal gives it no weight.

   ·     Whether there would be consequential cancellations under s.140

   The Tribunal was provided with no evidence on this point and gives it little weight.

   ·     Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

   The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences intended by the Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

   ·     Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

   There was no evidence in relation to this factor and the Tribunal gives it no weight.

   ·     If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

   There was no evidence in relation to this factor and the Tribunal gives it no weight.

   ·     Any other relevant matters.

   There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

   DECISION

3. 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.

   Peter Booth
   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.