Sahota (Migration)

[2023] AATA 1845

Sahota (Migration) [2023] AATA 1845 (9 March 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prince Sahota

CASE NUMBER:  2209718

HOME AFFAIRS REFERENCE(S):          BCC2017/130601

MEMBER:Gabrielle Cullen

DATE OF DECISION:  9 March 2023

DATE CORRIGENDUM

SIGNED:15 March 2023

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

On page 1 under Decision replace Subclass 500 (Student) visa with Subclass 573 Higher Education Sector visa

At paragraph 1, 3, 20 and 24 replace Subclass 500 (Student) visa with Subclass 573 Higher Education Sector visa.

Gabrielle Cullen
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prince Sahota

CASE NUMBER:  2209718

HOME AFFAIRS REFERENCE(S):          BCC2017/130601

MEMBER:Gabrielle Cullen

DATE:9 March 2023

PLACE OF DECISION:  Sydney

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 09 March 2023 at 10:32am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa - Federal Circuit Court remittal – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – family bereavement – education provider failed to upload confirmation of the applicant's enrolment onto PRISMS – decision under review set aside         

LEGISLATION

Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116
Migration Regulations 1994, Schedule 8, Condition 8202

CASES

Wei v Minister for Border Protection (2015) 257 CLR 22

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.

3. The Tribunal received an application for review of the delegate’s decision from the applicant on 7 February 2017. The applicant attached the Department’s Notification of Cancellation under s 116 dated 2 February 2017 which indicates that on 17 January 2017 the Department notified and invited the applicant to comment on the intention to consider cancellation of his Subclass 500 Student visa on the basis he had not been enrolled in a course of study since 27 June 2016. The delegate noted that based on the 'Provider Registration and International Student Management System' (PRISMS) record he had not been registered in a course of study since 27 June 2016 until when he obtained a new enrolment on 19 January 2017.

4. The applicant claimed in an email dated 1 February 2017 with supporting documentation that the culmination of a series of adverse events, including the death of family members, natural disaster in his home country, financial hardship and psychological distress caused the cessation of his studies. Within his submissions to the Department were emails from  July 2016 and August 2016 from Sydney Metro College regarding his study there. In particular he submitted:

   ·An email dated 25 July 2016 from Sydney Metro College to the applicant regarding submission of assessments due on 14 August 2016.

   ·An email from Sydney Metro College to the applicant dated 24 August 2016 noting his attendance is below 50% and that he is at risk of breaching condition 8202.

   ·An email form the applicant to Sydney Metro College dated 30 August 2016  advising that his sister died and he will come and talk to the Director.

5. The applicant appeared before the Tribunal (differently constituted) on 11 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The applicant gave evidence that he had been enrolled to study in Australia but due to personal difficulties he had not been able to continue. He did not dispute that while holding a Student Visa, he had not studied in the relevant period, from 27 June 2016 to 17 January 2017 when a Notice of Intention to Consider Cancellation was issued by the Department. The Tribunal (differently constituted) found that the applicant was not enrolled in a registered course and that he had not complied with condition 8202, considered the discretionary criteria and affirmed the decision of the Department.

7. On 16 June 2022 the Federal Circuit Court remitted the matter by consent as the Minister conceded that the decision of the Tribunal is affected by jurisdictional error because a delegate of the Minister (the delegate) cancelled the applicant's visa on the basis that information in the 'Provider Registration and International Student Management System' (PRISMS) indicated that the applicant had not been enrolled in a registered course of study since 27 June 2016. The Tribunal also relied upon the applicant's period of not being enrolled as being over six months. However, correspondence between the applicant and the education provider that was submitted to the Minister but was not provided to the Tribunal indicated that the applicant was enrolled in a course of study until at least August 2016. Accordingly, the delegate's fact-finding was tainted by the education provider's failure to perform its imperative statutory duty to upload onto PRISMS confirmation of the applicant's enrolment in breach of s 19 of the Education Services for Overseas Students Act 2000 (Cth), which means that the Tribunal's fact-finding was also in error: Wei v Minister for Border Protection (2015) 257 CLR 22.

8. On 21 February 2023 the Tribunal wrote the following letter to Sydney Metro College as follows

   According to the 'Provider Registration and International Student Management System' (PRISMS), Prince Sahota was enrolled at your College in 2016 to study an Advanced Diploma of Business from 18 January 2016 to 26 June 2016 (see attached CoE). The information from PRISMS indicates he was not enrolled in any course with you or any other education College from 26 June 2016 to 30 January 2017. As a result, his student visa was cancelled by the Department for non-enrolment in this period. His case is now before the Tribunal.

   Contrary to the PRISMS record and the decision of the Department there is correspondence between the applicant and your College that Prince Sahota was enrolled in a course of study at your College until at least August 2016. That correspondence is attached.

   Consequently, please advise of the following:

   1.Was Prince Sahota enrolled in your College between 26 June 2016 and 30 January 2017 and if so in what period? If so, please provide dates and a CoE.

   2. Do you have any record of the attached emails being sent by your College to they appear to indicate the applicant continued to be enrolled in your College in August 2016?

9. The Tribunal attached the three relevant emails referred to above from July 2016 and August 2016 as well as the applicant’s COE to study an Advanced Diploma of Business at Sydney Metro College from 18 January 216 to 26 June 2016.

10. On 1 March 2023 the Tribunal again wrote to Sydney Metro College referred to its email of 21 February 2023 and the relevant information and requested a response by 8 March 2023

11. As at the date of this decision the Tribunal has not received a response from Sydney Metro College.

12. 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

13. 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 (Cth) (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?

14. 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)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·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).

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

16. 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 (Cth). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

17. The decision record set out that the applicant received a Notice of Intention to Consider Cancellation (NOICC) of his visa on 17 January 2017. The Tribunal is satisfied that the NOICC was validly issued.

18. The delegate found based on the PRISMS record that the applicant had not been enrolled in a course of study from 26 June 2016 to 19 January 2017, being the date of enrolment in a  further course. The PRISMS record which the delegate based its decision on, as did the Tribunal, indicates the applicant was enrolled in the Advanced Diploma of Business at Sydney Metro College from 18 January 216 to 26 June 2016. The PRISMS record indicates he finished this course on 26 June 2016 and was not enrolled in a further course until 19 January 2017. However, there is further evidence that the applicant continued to be enrolled with Sydney Metro College until at least August 2016 as there is email correspondence between the applicant and the education provider as to his study in this period. Despite two letters to Sydney Metro College to ascertain his enrolment status in the period from 26 June 2016 to 19 January 2017, Sydney Metro College has not responded.

19. While the applicant did not dispute that he was not studying in the relevant period at the hearing before the Tribunal (differently constituted), the questioning by the Tribunal was based on the Department’s decision that the applicant was not enrolled to study in that period which was based on the PRISMS record. However, as noted by the Court there is evidence the education provider failed to perform its imperative statutory duty to upload onto PRISMS confirmation of the applicant's enrolment in breach of s 19 of the Education Services for Overseas Students Act 2000 (Cth). The Tribunal has attempted to clarify the status of the applicant’s enrolment with the education provided but they have not responded. The Tribunal therefore cannot be satisfied on the evidence before it and on the PRISMS record that the applicant was not enrolled in a course of study in the relevant period, while the holder of a student visa.

20. Therefore, on the evidence before it,  the Tribunal cannot be satisfied that the applicant was not enrolled in and did not have a Confirmation of Enrolment (COE) in a registered course or a full-time course of study or training from 26 June 2016 until 19 January 2017 while the holder of a Subclass 500 Student visa.

21. On the evidence before it, the Tribunal is not satisfied that the applicant was not enrolled in a full time registered course. Accordingly, the applicant has complied with condition 8202(2)(a).

22. 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.

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

    DECISION

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

    Gabrielle Cullen
    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.