Zhu (Migration)

[2018] AATA 4932

Zhu (Migration) [2018] AATA 4932 (19 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Li Zhu

CASE NUMBER:  1622358

HOME AFFAIRS REFERENCE(S):           BCC2016/3824194

MEMBER:Brendan Darcy

DATE:19 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU visa.

Statement made on 19 October 2018 at 2:17pm

CATCHWORDS

MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – PRISMS record – extension of COE – no evidence of breach – 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 24 January 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 delegate found the applicant had been in breach of condition 8202 imposed on his student and that the grounds for cancellation outweighed the grounds for not cancelling the 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 19 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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 delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 27 June 2012 and the stay period of the visa was extended up to and including 30 August 2017. The decision record further states that Provider Registration and International Students Management System (PRISMS) records indicate the applicant was enrolled in a registered course of study until 1 July 2016.

9. During the scheduled hearing, the Tribunal pointed out to the applicant that PRISMS indicated the applicant had been enrolled in Monash University Foundation Year course (which he finished) and in a Bachelor of Engineering (Honours). It further indicated the applicant cancelled this Bachelor’s degree enrolment on 11 July 2013 in favour of a Bachelor of Computer Science enrolment. The applicant explained that the change in enrolment was due to him not achieving sufficient marks in the foundation course to remain enrolled in a Bachelor of Engineering but did have the opportunity to remain enrolled at Monash University in a computer science degree.  

10. The Department issued a Notice of Intention to Consider Cancellation (NOICC) letter on 13 December 2017, indicating the applicant he was no longer enrolled since 1 July 2016. 

11. The applicant responded to the NOICC invitation to comment by providing a statement on 14 December 2016. There were no accompanying documents.

12. The delegate noted in the decision record the applicant neither disagreed nor agreed there were grounds for cancellation in this instance. The Department proceeded to cancel the visa on 21 December 2016.

13. A day after the date of cancellation, the applicant submitted to the Department a few further written statement; an electronic CoE extension request for an enrolment in a Bachelor of Computer Science for Monash University; and enrolment verification issued by Monash University dated 21 December 2016.[1]

    [1] BCC2016/824194 Folios 27-29.

14. The applicant applied to have the delegate’s cancellation decision reviewed by the Tribunal on 25 December 2016.

15. At the scheduled hearing held on 5 October 2018, the applicant disputed that he was not enrolled between 1 July 2018 and the date of cancellation, as posited by delegate.

16. During the hearing, the PRISMS record was examined by the Tribunal. The PRISMS record indicated the applicant ‘finished’ his Bachelor of Computer Science on 30 June 2016 [5CBB2573]; and that he had enrolled in a new Bachelor of Computer of Science which was to begin in 1 July 2017 and to be completed by 31 December 2017 [88290434]. It was unable to identify the applicant had not been enrolled in a Bachelor of Computer Science or a ‘1 July 2016’ cancellation date for any enrolment anywhere on the PRISMS document.

17. The applicant explained that he completed two thirds of this course work and then sought to extend the CoE to complete it. He further claimed that he continued to study between 1 July 2016 and the date of cancellation. 

18. The applicant also claimed Monash University’s enrolment verification document dated 21 December 2016 confirmed that the applicant was enrolled for a semester as a full-time student between 1 July 2016 and 31 December 2016.  This document was on the Departmental file but not submitted to the Tribunal.

19. The Tribunal places considerable weight on it as credible evidence that the applicant had been continuously enrolled since the grant of his student visa. It further finds that the PRISMS record does not support the finding by the delegate that the applicant not been enrolled in any registered course. The Tribunal cannot find any evidence to support the applicant has breached condition 8202(2) between the grant of the visa and its cancellation date. 

20. Based on the available evidence before the Tribunal, the applicant was enrolled in a registered course commensurate with a subclass 573 student visa.

21. Accordingly, the applicant has complied with condition 8202(2).

22. 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.

    Conclusion

23. Having found that the applicant has complied with condition 8202 of his student visa, the Tribunal is not required to the exercise of its discretion.

24. As discussed in the scheduled hearing, the Tribunal considers that the applicant be given the opportunity to continue his studies and apply for a new visa under subclass 500 as subclasses 570 through to 576 has been discontinued since 30 June 2016.

25. As the grounds for cancellation in s.116(1)(b) does not arise, the Tribunal finds that the correct and preferable decision is that the visa should not be cancelled.

    DECISION

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU visa.

    Brendan Darcy
    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.