Rai (Migration)

[2020] AATA 3423

Rai (Migration) [2020] AATA 3423 (1 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alok Rai

CASE NUMBER:  2006094

HOME AFFAIRS REFERENCE(S):          BCC2019/5365416

MEMBER:Vanessa Plain

DATE:1 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 01 July 2020 at 11:31am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course ceased – applicant re-enrolled after late fee payment – evidence of further enrolments and fees through the specified period – decision under review set aside    

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 17 March 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 was not 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 5 June 2020 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(2)(a) 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 full time registered course: 8202(2)(a)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course between 30 November 2018 and 26 February 2020.

9. A Notice of Intention to Consider Cancellation was sent to the applicant on 24 February 2020.  The applicant responded in writing on 2 March 2020.  In his response, the applicant conceded he had been tardy maintaining his enrolment, insofar as he understood that concept to be attending classes. 

10. At the hearing, the applicant contended that although he had missed some classes, he had been enrolled and was attending classes in 2018, 2019 and 2020 and did not believe that he had a period of non enrolment.

11. The Tribunal recited the PRISMS record to the applicant and made specific reference to his Diploma of Software Development being cancelled in December 2018.  The applicant maintained that he had paid courses fees, had CoEs, records of attainment and emails with his course provider that demonstrate that he was enrolled during the period that the Delegate formed the view, based on information available to the Department, that the applicant was not enrolled. 

12. Given the applicant’s contentions, the Tribunal considered it appropriate to adjourn the hearing and provide the applicant with time to provide documentary evidence to the Tribunal as to his enrolment during the period in which the Delegate contended that he was not enrolled.

13. On 26 June 2020, the applicant provided detailed documentary evidence as follows:

    ·    CoEs for a Diploma in Software Development and a Bachelor of IT

    ·   Academic transcripts for his Diploma of Software Development, which clearly evidences the fact that he was enrolled in that course and studying it, between 18 July 2018 and 29 August 2019 respectively.

    ·   Bank statements for each month of 2019 which clearly indicate that the applicant was paying for course fees throughout the entirety of 2019

    ·   Emails between himself and La Trobe seeking a release from the Bachelor of IT in December 2019

    ·   A letter confirming enrolment in a Certificate III in Cookery in December 2019 and an actual CoE for that course dated 1 March 2020.

14. The confusion has arisen because the PRISMS record discloses that the Diploma of Software Development was cancelled by the education provider in December 2018.  The applicant acknowledged this CoE was cancelled, but that was on account late payment of fees, the enrolment was immediately reinstated upon payment of fees, which is clearly evidenced by the subject matter of the documents set out above.

15. The applicant’s academic transcripts clearly evidence the fact that the applicant was attending classes and enrolled for the entirety of late 2018 and all of 2019.  The letter confirming enrolment in the Cookery course in December 2019, issued in advanced of the applicant procuring the relevant CoE, confirms enrolment.

16. The Delegate did not have the benefit of sighting the documentary material set out in the aforementioned paragraphs at the time of decision to cancel.  Furthermore, the applicant did not appreciate the distinction between not attending several classes, and not maintaining enrolment, when he responded to the NOICC.  It was only after seeking legal advice and procuring the documents which I have described above, that it has become apparent that the applicant has not failed to maintain enrolment in a registered course.    

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

18. 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

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Vanessa Plain
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.