Sok (Migration)

[2019] AATA 838

Sok (Migration) [2019] AATA 838 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sokher Sok

CASE NUMBER:  1713056

HOME AFFAIRS REFERENCE(S):           BCC2017/1197437

MEMBER:Mark O'Loughlin

DATE:22 January 2019

PLACE OF DECISION:  Adelaide

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 22 January 2019 at 4:36pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – updated PRISMS records – Confirmation of Enrolment in relevantly registered course – 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 15 June 2017 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 (the Act).

2. The delegate cancelled the visa on the basis that the Confirmation of Enrolment certificate pursuant to which the applicant’s visa had been granted had expired and there was no evidence that it was replaced by any other current Confirmation of Enrolment. 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 was represented in relation to the review by his registered migration agent.

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 applicant enrolled in a Bachelor of Engineering (Honours) (Civil and Structural) at the University of Adelaide in 2015 and changed to a Bachelor of Information Technology (Games and Entertainment Design) at the University of South Australia starting on 18 July 2016.

9. In coming to a decision in respect of the cancellation of this visa the delegate of the minister had regard to the Provider Registration and International Student Management System (PRISMS), an electronic system that helps to monitor enrolments and study progress by holders of student visas. 

10. The delegate of the Minister noted that PRISMS indicated that the applicant’s enrolment had expired on the 23 August 2016 and there was no evidence in PRISMS that a current Confirmation of Enrolment had since been obtained.

11. The applicant was notified of the Minister’s intention to consider cancelling the applicant’s visa on 2^nd June 2017.

12. On 3^rd June 2017 the applicant sent an email to the delegate of the Minister saying that the relevant Confirmation of Enrolment, number 81C68065, was current and that he was studying. It appears that he provided a copy of that Confirmation of Enrolment with that email.

13. The delegate found that the applicant’s assertion was not supported by PRISMS and found that the applicant had not complied with condition 8202(2)(a).  The delegate found that the Confirmation of Enrolment had expired on 17 September 2016.

14. There is nothing in the file provided to the Tribunal to suggest that the Confirmation of Enrolment expired on that day.

15. The delegate had also found that the University of South Australia had notified the Department of Immigration and Border Protection on 13 August 2016 that the visa holder had ceased studies and was no longer enrolled.

16. There is nothing on the file provided to the Tribunal that supports that finding.

17. The applicant has provided a copy of the relevant Confirmation of Enrolment to the Tribunal and draws the Tribunal’s attention to the fact that it was apparently current at the time of the delegate’s decision.

18. The applicant further notes that the PRISMS records were updated on 16^th June 2017, the day after the delegate’s decision, to show that the applicant did hold a current Confirmation of Enrolment.

19. The applicant has provided copies of apparently genuine correspondence with administrative staff at the University of South Australia and in particular an exchange between Fiona Lazowski of the University and Vincent Liu who was making enquiries on behalf of the visa holder.  That exchange took place after the delegate’s decision and on 28 June 2017 Ms Lazowski stated that the CoE was never cancelled nor did the University take any action against the student’s CoE.  She stated that she believed the CoE status change to “expired” was done automatically by the PRISMS system

20. The Tribunal has confirmed that the PRISMS records now show that the applicant held a Confirmation of Enrolment in a bachelor degree course at the time of the delegate’s decision.

21. Consideration of the Commonwealth Register of Institutions and Courses for Overseas Students maintained on the Education Department’s website shows that the course for which the applicant held a Confirmation of Enrolment is a relevantly registered course holding the CRICOS code 067898K.

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

23. 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

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

    Mark O'Loughlin
    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.