Sundo (Migration) - [2023] AATA 2566

Sundo (Migration) [2023] AATA 2566 (24 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Christian Jubil Sundo
REPRESENTATIVE:  Mr Sean Dong (MARN: 1066448)
CASE NUMBER:  2208579
HOME AFFAIRS REFERENCE(S):          BCC2020/2345436
MEMBER:Christine Kannis
DATE:24 July 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 24 July 2023 at 7:54am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – gap in enrolment – COVID-19 lockdown – financial hardship – unsatisfactory course progress – non-payment of course fees – reported collective student allegations against college – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 137J, 140, 189, 198, 359
Migration Regulations 1994, Schedule 8, Condition 8202; rr 1.03, 2.43
CASES
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 2 June 2022 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 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams video on 10 July 2023. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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?
On 26 April 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sundo (Migration)

Details

AGLC: Sundo (Migration) [2023] AATA 2566
Case: [2023] AATA 2566
Decision Date: 24 July 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 500 (Student) visa was cancelled. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which mandates enrolment in a full-time registered course and satisfactory course progress and attendance.

The Tribunal was required to determine if the applicant had complied with condition 8202(2)(a) of the visa, which necessitates being enrolled in a full-time registered course. The applicant's visa was cancelled on the basis that he was not enrolled in such a course. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, given the circumstances presented by the applicant.

The Tribunal found that the applicant had breached condition 8202(2)(a) as evidence from the Provider Registration and International Students Management System (PRISMS) indicated he was not enrolled in a registered course between 8 July 2020 and 26 April 2022. While acknowledging the applicant's submissions regarding financial hardship due to COVID-19, his perceived low help-seeking behaviour, and the actions of his education provider, the Tribunal concluded that these factors did not outweigh the breach of the visa condition. The Tribunal affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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? On 26 April 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached. 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). The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2] [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act. The information from PRISMS shows that the applicant was not enrolled in a registered course from 8 July 2020 to 26 April 2022. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 8 July 2020 to 26 April 2022 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.Consideration of the discretion to cancel the visa There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant and his representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. On 11 April 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 8 July 2020 and had therefore failed to comply with condition 8202(2)(a) of his visa. Response to NOICC On 20 April 2022 and 28 April 2022, the applicant responded to the NOICC and provided the following information in a submission from his registered migration agent:·From 31 March 2020, the COVID-19 lockdown in Victoria started. There were only four reasons to leave home: for food and supplies, for exercise, for medical care and for work and education. ·On 8 July 2020, he was not able to enrol in any of his courses due to the financial uncertainty caused by the COVID-19 pandemic. When he travelled to Australia, his parents were to provide financial support but due to COVID-19, his parents experienced loss/decrease of work. ·He has low help-seeking behaviour. A report by the International Education Association of Australia, states that “ International students tend to be associated with low help-seeking behaviours”. He did not seek assistance from the school because he felt he was not entitled to assistance because of his status in Australia. He did not seek help because he did not comprehend what needs to be done or prioritised. For example, when the letter from the school was provided to him, he did not view it as something that needs his urgent attention. Instead, he just acted when he realised that this issue is getting more serious. ·The school (Lawson College) did not attempt to support him during the COVID-19 pandemic. The pandemic caused hardship to students including him. Every time Lawson College emailed him, it was always about payment of tuition fees. ·He has no criminal or administrative cases in the Philippines and he did not intend to violate Australian law. If he did, he was not aware of the gravity of his action. His young age and inexperience in law matters in Australia led him to this stage.·He wants to correct his action by doing the following: (a) Comply with his visa conditions by enrolling in a registered course. He has enrolled in a Certificate IV in Ageing Support at the Australian National Institute of Business and Technology; (b) Comply with the student visa conditions. He understands compliance with the visa conditions is a compliance to Australian law.·If his visa is cancelled, the following may happen: (a) Severe financial damage to him and his family because his parents invested time and money in his education; (b) Great shame for himself and his family. A sense of “shame” is part of the Philippine culture and he would feel shame if he went home with nothing to show.