Singh (Migration)

[2020] AATA 2113

Singh (Migration) [2020] AATA 2113 (7 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurlal Singh

CASE NUMBER:  1704686

HOME AFFAIRS REFERENCE(S):          BCC2017/336249

MEMBER:Peter Newton

DATE:7 May 2020

PLACE OF DECISION:  Sydney

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.

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – study history and PRISMS record – enrolled in and completed lower-level course – confirmations of enrolment in courses at original and higher levels – no evidence of non-enrolment – department erred in finding applicant was not enrolled – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.    This is an application for review of a decision dated 6 March 2017 (Decision) 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 (Act).

2.    The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study since 29 June 2016 and on that basis had not met the requirements of condition 8202(2)(a) imposed on the applicants Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa.  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 1 May 2020 by telephone 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 (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 of study since 29 June 2016.

8.    The Decision records that on 17 February 2017 the applicant was notified of the intention to consider cancellation (NICC).  In response to the NICC, the applicant’s agent sent to the department an email on 5 March 2017 together with a number of documents attached to the email.  The email from the applicant’s agent, which is quoted in the Decision, states:

9.    The documents attached to the email from the applicant’s agent sent 5 March 2017, included copies of the following:

a.Overseas Student Confirmation of Enrolment (CoE) for an Advanced Diploma of Accounting course with Zeneth Business Academy with a course start date of 30 November 2015 and end date of 27 May 2016;

b.academic transcript and certificate for a Diploma of Business issued 28 February 2017 by Australian Education & Learning Institute.  The certificate certifies that the applicant has fulfilled the requirements for the Diploma of Business.

c.CoE for an Advanced Diploma of Leadership and Management course with Group Colleges Australia Pty Ltd (Group Colleges) with a course start date of 10 April 2017 and end date of 23 March 2018.  The CoE records that it was created on 17 February 2017.

d.CoE for a Bachelor of Accounting course with Group Colleges with a course start date of 7 May 2018 and end date of 23 April 2021.  The CoE records that it was created on 17 February 2017.

1. During the hearing, the applicant did not accept that he had not been enrolled in a registered course of study since 29 June 2016. The applicant indicated that he had been enrolled in the Diploma of Business course.  The email from the applicant’s agent states: “on (sic) mid 2016 the visa holder started his Diploma of Business course at Australian Education and Learning Institute and completed (sic) on 28 February 2017”.  During the hearing, the applicant said that he completed the Diploma of Business course on 17 February 2017.  The applicant said that the Diploma of Business course was the last course he completed and he has not studied since 17 February 2017.

2. However, the applicant said that he had enrolled in the Advanced Diploma of Leadership and Management course and the Bachelor of Accounting course with Group Colleges.  He said he did not commence studying those courses. The applicant provided the CoEs for those courses which record that the Advanced Diploma of Leadership and Management course had a start date of 10 April 2017 and end date of 23 March 2018 and the Bachelor of Accounting course had a start date of 7 May 2018 and end date of 23 April 2021.

3. The Decision to cancel the applicant’s visa was made on 6 March 2017.  The evidence supports the finding that at the time of the Decision, the applicant was enrolled in the two courses of study with Group Colleges as indicated above.  It appears the applicant obtained enrolment in these courses of education on 17 February 2017 being the same day he says he completed the Diploma of Business course.   

4. During the hearing, the applicant said his enrolments with Group Colleges were cancelled for non-commencement of studies.  He said that he received a letter from Group Colleges dated 4 June 2018 advising that his enrolment had been cancelled “due to non-commencement of studies.”

5. As indicated, the Decision dated 6 March 2017 states:

6. Having regard to all of the evidence including the two CoEs from Group Colleges Australia issued 17 February 2017 for the Advanced Diploma of Leadership and Management course and the Bachelor of Accounting course, which were issue on 17 February 2017 being the same day the applicant completed the Diploma of Business course and the Department issued the NOICC, the finding by the Tribunal that the applicant had not been enrolled in a registered course of study since 29 June 2016 is incorrect at least as at the date of the Decision.

7. Whilst the email from the applicant’s agent sent to the Department on 5 March 2017 submits that: “We are instructed that since Mr Singh arrived in Australia in March 2014 he continued study till February 2017 and now enrolled (sic) two other courses starting from 10 April 2017”, it does not assert that the applicant was enrolled in a registered course of study from 29 June 2016 to February 2017.  The applicant has not provided a CoE for the period 29 June 2016 to 17 February 2017.  The file of the Department provided to the Tribunal does not contain a printout or record of the information from the Provider of Registration and International Student Management System (PRISMS) evidencing that the applicant had not been enrolled in a registered course of study since 29 June 2016, save for the statement to this effect in the Decision. 

8. I found the applicant to be candid and truthful during the hearing.  He gave evidence against his interests.  I accept the applicant’s evidence given at the hearing.  The applicant denied that he was not enrolled in a registered course of study since 29 June 2016.  His agent submitted that “since Mr Singh arrived in Australia in March 2014 he continued study till February 2017” and the applicant said he completed the Diploma of Business course on 17 February 2017.  Therefore, I infer he must have been enrolled in that course of study.  The applicant provided to the Tribunal two CoEs issued on 17 February 2017 by Group Colleges for the Advanced Diploma of Leadership and Management course and the Bachelor of Accounting course.  The only evidence that the applicant was not been enrolled in a registered course of study since 29 June 2016 is the Decision.  However, the Department had been provided with the two COEs issued by Group Colleges Australia in response to the NOICC and the Department erred in finding that the applicant had not been enrolled in a registered course of study since 29 June 2016. 

9. Having regard to all of the evidence before the Tribunal, I find that the applicant was enrolled in a registered course of study and the applicant had complied with condition 8202(2) before the Decision to cancel the applicant’s visa.

10. 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

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Peter Newton
Member

Statement made on 07 May 2020 at 3:15pm

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.