Wong (Migration)

[2019] AATA 2333

Wong (Migration) [2019] AATA 2333 (5 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jackson Kai Sen Wong

CASE NUMBER:  1721750

HOME AFFAIRS REFERENCE(S):           BCC2017/2619340

MEMBER:Elizabeth Tueno

DATE:5 June 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 05 June 2019 at 12:07pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not complied with condition – not enrolled in registered course – offered place with partial scholarship – unable to enrol because of conditions – restrictions of bridging visa – complied with condition – decision under review set aside   

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)
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 8 September 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 applicant is a 24 year old Malaysian national.  He was granted a student visa on 28 February 2013 which was valid until 15 March 2019 to complete the Monash University Foundation Year and then a Bachelor of Medicine.  On 8 September 2017, the delegate cancelled the visa on the basis that the applicant had not complied with condition 8202(2)(a) in that he was not enrolled in a registered course.  The delegate was not satisfied that the grounds for cancelling the visa were not outweighed by the grounds for not cancelling it.  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 17 May 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The applicant was represented in relation to the review by his registered migration agent, who attended the Tribunal hearing.

4. Prior to the hearing, the applicant provided a number of documents to the Tribunal including legal submissions, documents relating to his enrolment history in courses of study. 

5. 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

6. 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?

7. 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).

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

9. After having completed high school in Malaysia, the applicant came to Australia at age of 18 for the purpose of studying medicine.  As noted in the applicant’s written legal submissions, and confirmed in evidence at the hearing, the applicant completed his Monash University Foundation Year in December 2013 but was advised that his score did not meet the entrance requirements for the Bachelor of Medicine degree at Monash University.  He followed the advice of an education agent and enrolled in a Bachelor of Biotechnology degree, understanding that he could later transfer back into the Bachelor of Medicine course.  The applicant completed this course in December 2016.  He stated in evidence that in order to gain entry to the Bachelor of Medicine course at Monash he needed a Grade Point Average (GPA) of 6 out of 7.  Unfortunately he received a GPA of 5.8.

10. After the disappointment of not getting into the Bachelor of Medicine course a second time, he left Australia to visit Taiwan as his grandmother had just passed away.  Upon his return to Australia he then sat a GAMSAT on 25 March 2017.  He passed this test and applied for a Bachelor of Medicine course at Deakin University in August 2017.  However, his applicant was rejected by Deakin University because he GAMSAT score was not high enough, despite passing the test.

11. The applicant made arrangements to sit a second GAMSAT in September 2017.  However, in the interim period his visa was cancelled and accordingly he did not sit the GAMSAT. 

12. He stated that if his visa is not cancelled, he intends on sitting a second GAMSAT.  If he fails to achieve a high enough score, he intends on enrolling in a Master of Occupational Therapy.  He said this is similar to medicine and he has friends who are working in this field. 

13. The applicant has already been offered a place at Curtin University on a Merit Scholarship to study the Master of Occupational Therapy course.  However, he has not yet been able to enrol in this course because of the current restrictions placed on him under his bridging visa.  The applicant provided a letter from Curtin University dated 7 June 2018 which confirmed the offer made to him for enrolment in this course.

14. The applicant referred to the decision of Tembo, Ng’onya Nthabiseng [2004] MRTA 2963 (12 May 2004) and submitted that his visa ought not be cancelled on the basis that his situation is similar to the Tembo decision.  In that case, the applicant had been unable to re-enrol in his course of study because after his student visa had been cancelled, his bridging visa conditions did not allow him to undertake study, despite having successfully appealed the University’s decision to exclude him from enrolment and therefore being permitted to re-enrol.  The Tribunal in the Tembo case found that the applicant had not breached condition 8202.

15. In the application currently before the Tribunal, the applicant has been offered a place, with a partial scholarship, in a course of study at a Masters level which is higher than the Bachelor course.  However, he has been unable to enrol in this course because of the conditions of his bridging visa.  The applicant provided a copy of his bridging visa, which confirms that he currently remains in Australia on a Bridging E (class WE) visa, however this visa does not allow him permission to study.

16. In light of the evidence presented, the Tribunal considers that the applicant was offered a position in a registered course at a higher level than the Bachelor degree (namely, the Master of Occupational Therapy at Curtin University), however he has not been able to enrol in this course because of the restrictions on his bridging visa.  In the circumstances, the Tribunal considers that the applicant has complied with condition 8202(2) and that the visa should not be cancelled.

    DECISION

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

    Elizabeth Tueno
    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