Singh (Migration)

[2019] AATA 3490

Singh (Migration) [2019] AATA 3490 (1 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jarman Preet Singh

CASE NUMBER:  1901359

HOME AFFAIRS REFERENCE(S):         BCC2018/4306703

MEMBER:D. Triaca

DATE:1 August 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 573 Higher Education Sector visa.

Statement made on 01 August 2019 at 11:42am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – enrolled in a registered course – discrepancy in PRISMS records – evidence of academic progress – 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 11 January 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education 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 was not enrolled in a registered course since 17 March 2018. 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 31 July 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. In the delegate’s decision dated 11 January 2019, the delegate found that the applicant had not been enrolled in a registered course of study since 17 March 2018 and in those circumstances was in breach of condition 8202(2)(a) of the applicant’s visa for a period of approximately 10 months.

9. The delegate relied upon the PRISMS records to find that the applicant had not completed any registered course for which he has been enrolled since his arrival in Australia on 12 November 2015. This reflected a period of over 3 years without evidence of any academic progress in Australia at the time of the delegate’s decision.

10. At the hearing, the applicant provided the Tribunal with a copy of:

    (a)Statement of Attainment from PAX Institute of Education Certificate III in Commercial Cookery dated 3 July 2017;

    (b) Record of Results from Boston Institute of Technology Certificate III in Commercial Cookery dated 11 December 2017, reflecting Credit Transfer from PAX Institute; and

    (c) Certificate IV in Commercial Cookery from Boston Institute of Technology dated 16 May 2018.

11. He states that he initially enrolled in IT courses in Australia, however his family suffered a financial setback and he was without financial support that he had anticipated upon arrival. He therefore chose to enrol in Hospitality courses with lower fees. He enrolled at the PAX Institute and studied Commercial Cookery in 2016 and studied there for approximately 12 months. The applicant stated that he then enrolled in the Certificate III in Commercial Cookery at Everest Institute following his time at PAX in mid-2017. He was not there long and he then enrolled at Boston Institute of Technology (Boston) in the same course.

12. Everest subsequently cancelled his CoE and this cancellation was apparently reflected in the PRISMS system but he seems to have obtained and maintained his enrolment at Boston and continued to study during 2018 and after the cancellation of his CoE at Everest. He states that he and his agent had attempted to obtain a release from Everest but were not able to do so in circumstances where he was studying the same course.

13. There appears to have been some misunderstanding between the applicant and the course providers. However, I do not consider the applicant is at fault in circumstances in which he appears to have been doing what a student on a student visa should be doing, studying in approved courses and progressing academically.

14. Following the completion of the Certificate IV at Boston, he intended to study further in a Bachelor of Hospitality but has been unable to do so, on account of the cancellation of his student visa.

15. The Tribunal accepts the applicant’s evidence, supported by the documents, that he was enrolled in a registered course and studying beyond 17 March 2018.

16. The Tribunal also notes that the Delegate’s decision states that the applicant had “not completed any registered course for which he has been enrolled” whilst in Australia. On the evidence this is not correct. The applicant has completed two registered courses whilst in Australia including one after it appeared on the PRISMS system that he was not studying.

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

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 573 Higher Education Sector visa.

    D. Triaca
    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.