Migration Review Tribunal Decision Summaries
Australian Immigration - Student Visas
August 2010
1001908
6 August 2010, Sydney
Ms K Raif, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 572 – VOCATIONAL EDUCATION AND TRAINING SECTOR – CL.572.322 – GENUINE DE FACTO RELATIONSHIP – A delegate of the Minister refused to grant the applicant a Subclass 572 visa on the basis that she did not satisfy cl.572.322 of the Regulations. The delegate found that the applicant, who was the partner of the first named applicant, had not provided sufficient supporting evidence that she was in a genuine de facto relationship with her partner, who was the holder of the Student visa. The applicant gave evidence at the Tribunal hearing and referred to documented evidence of her de facto relationship that had already been provided. She noted that evidence had been provided from her siblings and also from her partner’s father and she advised that their families had known about their relationship for over ten years. The applicant spoke about her relationship with her partner and explained that they met in 1999 and fell in love about a year later. She said that they obtained permission from their parents and started living together in a student hostel. She advised the Tribunal that she and her partner had both cared for her mother when she was ill. The applicant also spoke about her commitment to the relationship. She described the nature of the household and the couple’s financial arrangements and explained they had lived in a de facto relationship since 2002 or 2003. The Tribunal received oral evidence from the applicant’s partner (the primary visa holder) who spoke about her relationship with the applicant.
Held: Decision under review set aside
The Tribunal accepted the applicant’s evidence and found her to be a credible and truthful witness. The Tribunal noted that the applicant had provided evidence of cohabitation with her partner, as well as a number of statements from third parties confirming that she and her partner were in a genuine relationship which had existed for a number of years. The Tribunal also noted that the applicant and her partner had given detailed and consistent oral evidence about the nature of their relationship. The Tribunal accepted that they had established a joint household and socialised together as a couple. The Tribunal also accepted, on the basis of statements from third parties as well as the applicant’s oral evidence, that the relationship was socially recognised among friends and family members. The Tribunal found, further, that the applicant’s partner was the ‘primary person’ for the purpose of cl.572.322 and noted that she had satisfied the primary criteria and been granted a Subclass 572 Student visa. Accordingly, the Tribunal found that the applicant met the requirements of cl.572.322 of the Regulations.
July 2010
1002840
14 July 2010, Melbourne
Mr T Connellan, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 573 – HIGHER EDUCATION SECTOR – CANCELLATION – S.116(1)(b) – CONDITION 8202(3)(b) – EXCEPTIONAL CIRCUMSTANCES – A delegate of the Minister cancelled the applicant’s Subclass 573 visa under s.116(1)(b) on the basis that he had breached condition 8202 of his visa and there were no exceptional circumstances leading to the breach. The applicant claimed he successfully passed all subjects in the first two semesters of his Bachelor degree course. He claimed that in Semester 3, he failed two units out of four. In the following year, in Semester 1, he failed three out of five subjects and in Semester 2, he failed four out of five subjects. He claimed he received a termination letter from the University and that he lodged a number of appeals, but none of them were successful. A week before the exams, he received notification that his grandparents were ill. He claimed this had distracted him from studying and had adversely affected his exam performance which was reflected in his failing four of the five subjects. He claimed that one week before his exams, his mother told him of his grandparents’ ill-health. He also claimed that his work schedule made studying difficult as he worked three or four times a week, mostly in the evenings and at night. He claimed he often worked till the early hours of the morning which made travel difficult and he often got home very late when he needed to get up to study in the morning. He claimed the workload caused him stomach pains, but he had not consulted a doctor because the University doctors were fully booked and he went to a chemist who gave him medicine which settled his stomach. He claimed he had not approached the lecturers or counsellors about his study difficulties because their availability clashed with his classes or work schedule. He claimed that, at the time, he thought work was more important than resolving his academic problems. A Faculty Co-ordinator from the University where the applicant was currently studying, claimed that since the applicant had commenced studies there, he was achieving satisfactory course progress. He also claimed that, in the circumstances surrounding the applicant’s academic failure and particularly with the news about his grandparents, the previous University would have provided him with counselling and not terminated his enrolment.
Held: Decision under review affirmed.
The Tribunal found that the applicant was certified as not achieving satisfactory course progress and not complying with condition 8202(3)(a). The Tribunal considered whether such non-compliance was due to exceptional circumstances beyond the applicant’s control. The Tribunal accepted that deteriorating health of elderly grandparents was likely to be a cause of great concern. However, the Tribunal found this was not an unusual or exceptional circumstance, but a common difficulty faced by many international students as in the applicant’s case where his grandfather was in his 80’s when the applicant first came to Australia. The Tribunal further accepted that the news of his grandparents’ ill-health may have caused the applicant concern that impacted his capacity to study, but his pattern of poor academic results was established before the news arrived. The Tribunal did not accept that the applicant’s own ill-health, which was not sufficiently severe to require a doctor’s visit, constituted an exceptional circumstance which contributed to his failure to achieve satisfactory academic progress. The Tribunal did not accept that a workload of up to 20 hours in evening or night shifts three or four times per week was unusual for a tertiary student and found the applicant’s priorities were towards work rather than study. The Tribunal found the applicant’s employment was not an exceptional circumstance which contributed to his failure to achieve satisfactory academic progress. Accordingly, the Tribunal was satisfied such circumstances were prescribed circumstances in which the visa must be cancelled in accordance with s116(1)(b) of the Regulations.
1001365
13 July, Melbourne
Mr G Ledson, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 572 – VOCATIONAL EDUCATION AND TRAINING – CANCELLATION – S.116(1)(b) – EXCEPTIONAL CIRCUMSTANCES – A delegate of the Minister cancelled the applicant’s Subclass 572 visa under s.116(1)(b) on the basis that he failed to maintain satisfactory course progress for the Certificate III in Tourism at Education International & Training (EIT). The applicant advised that he was required to attend classes for between 15 and 20 hours per week. He had no classes on Fridays. He claimed that, at the start of his course, he attended all classes but as they became more difficult, he lost interest and started missing classes. He had also become homesick and confused and avoided attending class. The applicant confirmed that he was involved with alcohol and drugs in 2008 and 2009 and that he lived in a share house where there was partying all the time. This was why he had not attended classes on Mondays. He claimed that when his visa was cancelled, he was going through a lot and he began drinking. He had now stopped drinking because it did not help his situation and he had learnt about life and himself.
At the Tribunal hearing, the applicant agreed that EIT had provided him with significant support and that choosing this course had been a mistake. He had spoken to a counsellor at TAFE about the difficulties adapting to a new country and his father’s illness and he acknowledged that he did not know how to deal with these problems. However, the delegate did not accept that these circumstances were exceptional and the applicant’s visa was cancelled. He then lodged an internal appeal against EIT’s intention to report him to the Department, which was unsuccessful. He said that he had discussed transferring to another course but was told that it was too late to change. The applicant claimed he was also now receiving help from someone he had met since his release from prison. He claimed that in the past 12 months, he had done a short course to train as an aged carer and he had worked stacking shelves in a supermarket. He was not working at the moment because he did not have any work rights.
Held: Decision under review set aside.
The Tribunal considered that the applicant had suffered a roller coaster of emotions over the past eighteen months; however, it did not consider that these circumstances gave rise to the applicant’s breach of a condition of his student visa in the 2008 academic year. The Tribunal found that the applicant had not complied with condition 8202(3)(a) as EIT certified that he had failed to maintain satisfactory course progress for the Diploma in Tourism course. The Tribunal considered the applicant’s evidence that his life had spun out of control on his arrival in Australia and that, for the first time, he was without the support and guidance of his family and friends. Also, he was concerned about the health of his father and he was sharing a house with other students where there were no limitations on his behaviour. He stated that weekends were non-stop partying and that was why he had not attended classes on Mondays. He admitted that he made life choices without considering the consequences which led to him being imprisoned for 42 days.
The Tribunal had a great deal of empathy for the circumstances in which the applicant had now found himself. He presented as a contrite and humble person who acknowledged his past behaviour and was attempting to rehabilitate himself. It found he had addressed past issues and was focused on completing his education. The Tribunal considered that the unrestrained freedom experienced by international students, who in many instances were living without the protective umbrella of family and friends for the first time, was not an unusual or out of the ordinary experience and was therefore unexceptional. The Tribunal considered that it was unexceptional that the applicant found it difficult to adjust to his new life in Australia and that he lived with and associated with other international students who, it appeared, had forgotten the reason why they had travelled to Australia.
However, the Tribunal did consider it exceptional that a person would undertake risky behaviour, including drinking alcohol and taking drugs, to cope with their personal circumstances to the extent described by the applicant. This ultimately led to the applicant facing criminal charges leading to imprisonment. The lack of family support or other positive social networks at the time would appear, to the Tribunal, to have compounded the applicant’s situation. The applicant’s evidence was that, because of his addictive behaviour in an unrestrained social environment, his attendance deteriorated and he was quickly unable to cope with the demands of his course. He quickly lost motivation and found himself in an ever increasing downward spiral. The Tribunal was satisfied that this addictive behaviour contributed substantially towards the applicant being unable to meet the conditions of his student visa.
Based on this, the Tribunal was satisfied that the applicant found himself in a situation where his response to his personal circumstances during the period of the breach was exceptional. Additionally, the Tribunal was satisfied that the applicant’s addictive behaviour in an unrestrained social setting, led to his breach of a condition of his visa. Finally, the Tribunal considered that, as a consequence of this addictive behaviour combined with negligible social support, the applicant lacked the necessary skills or ability to correct his situation. The Tribunal considered that the circumstances that led to the applicant’s breach of a condition of his visa, at the time, were beyond his control.
The Tribunal was satisfied that the applicant had not complied with condition 8202 and that the ground for cancellation existed. However, as it found that the non-compliance was due to exceptional circumstances beyond the visa holder’s control, prescribed circumstances requiring mandatory cancellation of the visa did not exist. Nevertheless, as the Tribunal had decided that a ground for cancellation existed, it proceeded to consider whether the power to cancel the visa under s.116(1) should be exercised, having regard to all the circumstances.
The Tribunal found the applicant to be highly credible and remorseful and that he accepted responsibility for his behaviour. The Tribunal found the evidence confirmed the applicant’s circumstances and his commencement of rehabilitation leading to him achieving his goal to complete his education in Australia. The Tribunal considered the applicant’s behaviour before it to be exemplary and considered his statement to be remorseful, compelling and optimistic. The applicant stated that if he were to return to Kenya without a qualification, he would find it difficult to complete his studies as he would be required to undertake a foundation course to undertake tertiary studies. He felt he had already brought shame on himself and his family and this would be amplified if he were to return home due to his visa cancellation.
In view of all the circumstances of this case, including the circumstances in which the applicant breached condition 8202 of his visa and the exceptional circumstances beyond his control, the Tribunal was satisfied that the applicant’s visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.
1002799
6 July 2010, Sydney
Ms K Raif, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 560 – CL.560.222 – NOT ENROLLED IN A REGISTERED COURSE – The applicant was refused a student visa in 1997 as he had failed to provide evidence of his enrolment in a registered course. He was subsequently re-notified of that decision and sought review in 2008 and the matter was subsequently remitted by the Tribunal after the applicant provided evidence of his enrolment in an English course. The applicant’s enrolment was subsequently cancelled as he did not commence the course and he had no further contact with the college. The delegate again refused to grant the applicant this visa as they were not satisfied that he met the requirement of cl.560.222. The applicant’s representative advised the Tribunal that the applicant had believed he could not commence his course until he was granted a student visa and he was not informed by his college that the enrolment was being cancelled, nor was he given any warnings by the college. The representative stated that the applicant had obtained a further Confirmation of Enrolment (CoE), and the applicant provided a CoE for a course which was due to commence in July 2010. The applicant claimed that he completed Year 11 in 1997 before his family’s business had failed. He claimed that he could not extend his visa and, at the time, he did not know what to do as he did not want to return home and undertake national service, so he commenced working in Australia. The applicant claimed that he had not studied since 1997 as he could not pay the tuition fees and he did not realise that he could study before his student visa was granted. The applicant claimed that he had about $5000, that he would be living with his sister rent free, and that she would give him money for tuition fees so he would not need to work. The representative submitted that there were humanitarian issues involved as the applicant had spent all of his adult life in Australia and would have been eligible for a close ties visa if this type of visa were still available. He claimed that the applicant would also have a problem in Taiwan as he had avoided national service. The applicant subsequently provided evidence relating to his sister’s willingness and ability to provide him with financial support.
Held: Decision under review affirmed.
The Tribunal noted that the applicant’s tuition fees were likely to be substantial, and having regard to the limited savings held by him and his sister, it was not satisfied on the evidence that the applicant had the financial ability to undertake the course without contravening the visa condition relating to work. The Tribunal found that the applicant had engaged in employment whilst taking no steps to ensure that he was allowed to do so, which showed a disregard and indifference to his obligations to comply with the visa conditions, and subsequently it was not satisfied that the applicant intended to comply with these conditions in the future. The Tribunal was of the view that the applicant’s failure to undertake studies in the past 13 years reflected his lack of intention to study, and noted that the applicant had informed the Tribunal that he was granted a Bridging visa on the basis of his intention to undertake a course of study and to enable him to gather the tuition fees, which should then have made it obvious to the applicant that undertaking a course of studies was relevant to the grant of a Student visa. The Tribunal did not accept that the applicant did not realise that he was required to start his course before the visa was granted given that the applicant had been represented by an experienced migration agent who would have informed him about his capacity to commence a course of study. The fact that the applicant informed the Tribunal that he did not seek advice from his agent indicated that the applicant had no intention of engaging in a course of study. Having considered the applicant’s financial ability to undertake the course without contravening work conditions, the applicant’s comprehension of English, his intention to comply with visa conditions, and other relevant matters, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student. Accordingly, the Tribunal found that the applicant did not satisfy the requirements for a Student (Subclass 560) visa.
June 2010
1000912
4 June 2010, Sydney
Mr T Delofski, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 573 – HIGHER EDUCATION SECTOR – CANCELLATION – S.116(1)(b)– CONDITION 8202(3)(b) – EXCEPTIONAL CIRCUMSTANCES – A delegate of the Minister cancelled the applicant’s Subclass 572 visa under s.116(1)(b) on the basis that the applicant had not complied with condition 8202 in relation to attendance. The applicant claimed that his former college advised him by letter that his “overall attendance for this term is 0.00%”. In an email to the applicant, the college further advised him that he was released from his Certificate III Hospitality course as requested by him, and his remaining semesters at the college had been cancelled. The Letter of Release verified that the college released the applicant from the Certificate III in Hospitality and Diploma of Hospitality Management before the start of the third semester. Two months later, the college sent the applicant a letter which certified him as not having achieved satisfactory attendance for Certificate III in Hospitality, and advised that he had failed to meet his course requirements by breaching condition 8202. The applicant claimed that up until his departure from the college, he believed his attendance was satisfactory. He claimed his lecturer had been abusive and vindictive towards him and other (mainly Indian) students, including marking them absent for the day if they were 5 or 10 minutes late. He claimed the students’ raised their concerns with a Director of the College who discussed them with the lecturer. The applicant claimed the lecturer’s response was to vindictively mark the students as absent simply for raising their concerns with the Director. The applicant claimed he left that college at the end of the second semester and continued the same course with a new college until his visa was cancelled. He claimed his attendance and course progress at the new college had been satisfactory.
Held: Decision under review set aside.
The Tribunal noted that the college did not specify the period when the applicant was alleged not to have achieved satisfactory attendance, and concluded that this had occurred during the third semester as he had discontinued his course at the end of the second semester. The Tribunal further found that as the college had formally advised the applicant that it had agreed to release him prior to the start of his third semester, it was not surprising that his attendance for that semester was 0.00%. The Tribunal also found it understandable that the applicant thought he had no obligation to attend his course for the third semester. The Tribunal found the college’s advice to the applicant explained his non-attendance from the start of the third semester and constituted exceptional circumstances beyond his control. The Tribunal was therefore not satisfied that the applicant’s non-compliance with condition 8202 was not due to exceptional circumstances beyond his control. The Tribunal was satisfied the applicant had not complied with condition 8202 and that the ground for cancellation under s.116(1)(b) existed. However, the Tribunal was not satisfied that the non compliance was not due to exceptional circumstances beyond the visa holder’s control and therefore, it found that circumstances for the mandatory cancellation of the visa did not exist. Although it was not mandatory, the Tribunal found that a ground for cancellation did exist which did require it to consider whether the power to cancel the visa should be exercised. The Tribunal had regard to the applicant’s evidence as to why the visa should not be cancelled in accordance with policy guidelines. The Tribunal concluded that the visa should not be cancelled. The Tribunal attached most weight to the College’s misleading, and in the Tribunal’s view, improper behaviour towards the applicant, notably when it advised him that he was released from his course from the start of the third semester and then certified that his attendance was unsatisfactory during the third semester. The Tribunal also noted that evidence from the applicant and his representative suggested the college’s treatment of the applicant (and other students) while he was undertaking his course left something to be desired. Accordingly, the Tribunal was satisfied such circumstances were not prescribed circumstances in which the visa must be cancelled in accordance with s116(3) of the Regulations and the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.
May 2010
0902874
18 May 2010, Sydney
Mr I Hasan, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 572 – VOCATIONAL EDUCATION AND TRAINING SECTOR – CL.572.235 – SUBSTANTIAL COMPLIANCE – CONDITION 8516 – A delegate of the Minister refused to grant the applicant a Subclass 572 visa on the basis that the visa applicant did not satisfy cl.572.235 of the Regulations because she had not complied substantially with condition 8516 (the holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa) of her last substantive visa. Departmental records showed the applicant previously held a Subclass 573 (Higher Education Sector) visa which had a number of conditions attached to it, including condition 8206, which stated that the holder must not change education provider within 12 months if the course duration was more than 12 months, or before the end of the course if the course duration was less than 12 months. The delegate found the Subclass 573 visa was granted so that the applicant could undertake a package course of prerequisite English followed by a Bachelor of Accounting of three years duration. The delegate found that the visa applicant completed her English course and then commenced her Accounting course, which she studied for a period of 8 months before being granted a deferment for around 3 months in order to visit her father who was ill in India. On her return, the applicant continued her Accounting course but ceased after a further four months, at which time she enrolled with another education provider to undertake an Advanced Diploma in Hospitality Management which was of two years duration. The delegate noted that the applicant did not notify the Department when she changed her course and education provider, and that the change of enrolment subsequently meant she needed to change her visa from a Subclass 573 (Higher Education Sector) to a Subclass 572 (Vocational Education and Training Sector) visa.
Held: Decision under review set aside.
The Tribunal found no evidence which indicated the applicant did not satisfy the conditions attached to her Subclass 573 visa. The Tribunal found on the evidence, that the visa applicant did not fail to comply with condition 8206 because she changed her principal course of enrolment to another education provider after the end of the first 12 months. The Tribunal’s view was that condition 8516 required the applicant to continue to satisfy the primary criteria for the grant of the Subclass 573 visa from the time it was granted until it ceased. The Tribunal found that by changing her bachelor course to a diploma course she did not strictly comply with condition 8516, since her diploma course was not a course that was specified for her Subclass 573 visa. The Tribunal considered that as the applicant continued to satisfy all criteria except 573.231, she had complied substantially with the conditions of her last substantive visa. The Tribunal considered that substantial compliance requirements permitted some degree of non-compliance with the visa conditions. The Tribunal noted that the applicant had only changed her course level and provider, and that there was no evidence she had deliberately flouted the condition. The Tribunal observed that it was possible she had failed to appreciate she was in breach of the condition and there was no reason why, if she made a fresh visa application, it would not have been granted. The Tribunal found the applicant had substantially complied with condition 8516 of her last substantive visa. The Tribunal noted that the delegate claimed the applicant had not notified the Department of her change of enrolment, however, the Tribunal considered that even if it accepted this point, the applicant did not breach any of her last substantive visa conditions by this conduct. Accordingly, the Tribunal found that the applicant met the requirements of cl.572.235 of the Regulations.
0807813
3 May 2010, Sydney
Ms G Cullen, Member
STUDENT (TEMPORARY (CLASS TU) – SUBCLASS 573 – HIGHER EDUCATION SECTOR – CL.573.211 – CRITERION 3005 – SCHEDULE 3 CRITERIA PREVIOUSLY RELIED ON – A delegate of the Minister refused to grant the applicant a Subclass 573 visa as a visa had been previously granted to the applicant on the basis of satisfying criteria set out in Schedule 3 of the Regulations. The application was accompanied by a submission explaining that the applicant had known his visa was due to expire on 30 September 2008, so at 11:17 am he had lodged an online application and paid the $450 application fee via BPay. He also provided the payment receipt to the Tribunal which showed the payment was made on that date and time. He claimed that on 17 October 2008, he contacted the Department and was informed that he was unlawful. He stated that on 20 October 2008 he attended the Department and submitted a further application form and a cheque for $450. In a submission to the Tribunal, the applicant acknowledged that on a previous occasion he had relied upon satisfying criteria set out in Schedule 3 to be granted a student visa after having ceased to hold a substantive visa. He emphasised that based on previous experience, he had thought a payment made by BPay before 5pm would be processed on the same day. The Tribunal undertook enquires with the Department as to whether the application of 30 September 2008 was a valid application. In an email response the Department indicated that if the payment had not been received until after 30 September 2008, then the electronic application was invalid and the ‘client did not hold a substantive visa at time of lodgement’. A further response indicated that the BPay payment was received on 1 October 2008 at 10.00 am. This response also explained that due to a fault in the Department’s system, the BPay payment by the applicant was not matched to the applicant’s application until 11 November 2008. At the Tribunal hearing the applicant indicated that he was married to an Australian citizen who was pregnant and that he had discussed with the Department applying for a visa.
Held: Decision under review affirmed.
The Tribunal found the applicant to be credible and honest and his claims as to the submission of his application on 30 September 2008 were supported by Departmental evidence. The Tribunal accepted, based on the evidence before it, that the applicant submitted an application including the required additional documents via the internet on 30 September 2008, and paid the required fee for the visa via BPay on the same day. The Tribunal noted that evidence indicated that the fee was received by the Department from the Commonwealth Bank on 1 October 2008. The Tribunal referred to Regulation 2.12JA, which specified that the charge was taken not to have been received until the payment was electronically matched to the applicant's internet application form. As this did not occur until 11 November 2008 due to a fault in the
Department’s system, the Tribunal found that the relevant visa application was made on 20 October 2008, the date the applicant submitted a further application and payment. The Tribunal therefore found that at the time of application, the applicant was not the holder of a substantive visa. Further, as the applicant had previously been granted a visa on the basis of satisfying criterion 3005 of Schedule 3, the Tribunal found that he was unable to meet the requirements of this criterion, which required that a visa had not previously been granted to the applicant on the basis of satisfying the criteria set out in Schedule 3. The Tribunal refrained from referring this matter to the Department for the attention of the Minister, noting that the Minister had indicated that it was inappropriate for him to consider cases where it may be open to a person to make a valid application for a Partner visa onshore. The Tribunal therefore affirmed the decision not to grant the applicant a Student visa.
April 2010
0909574
14 April 2010, Sydney
Mr C Packer, Member
STUDENT (TEMPORARY) – SUBCLASS 573 – HIGHER EDUCATION SECTOR – CANCELLATION – S.109 – S.101(B) – INCORRECT ANSWER ON APPLICATION – The visa applicant’s Subclass 573 visa was cancelled under s.109 of the Act because the delegate found he did not comply with s.101(b), which provided that a “non-citizen must fill in his or her application form in such a way that ... no incorrect answers are given or provided.” The Department of Foreign Affairs and Trade (DFAT) provided copies of an Indian arrest warrant which pertained to the dishonouring of cheques, as well as documents regarding the attempts of Indian authorities to execute an arrest warrant, and advice that the applicant had a court case pending. The applicant’s visa application was completed on-line by an education agent, answered to the question “Have you, or any person included in this application to apply for this visa, ever: ...been charged with any offence that is currently awaiting legal action?” gave the answer as “No”. The applicant provided a statutory declaration in which he indicated that this was the first he became aware that an arrest warrant had been issued or that he had been charged with an offence in India. He claimed that as he was not aware of these matters, he had not given incorrect answers on his application. The applicant also lodged a submission which addressed the circumstances in which the non-compliance occurred and the hardship which the visa cancellation would cause the applicant and his spouse; various character references including one from his employer in India; the applicant’s arguments that the complaint in India was malicious; and a letter from a lawyer in India discussing the complaint and indicating it had now been satisfied by the payment of money, along with a receipt to this effect.
Held: Decision under review set aside
The Tribunal found that although the application was completed and lodged by an education agent on behalf of the applicant, an applicant who did not fill in the application form was taken to have done so if he caused it to be filled in on his behalf. The Tribunal also accepted the DFAT advice that the arrest warrant had been verified as genuine, and found that it was issued before the visa application was made electronically. Therefore, it concluded that the applicant had been charged with an offence that, at the time of the application, was currently awaiting legal action. The Tribunal found that despite the applicant’s argument that he was not aware of the arrest warrant or of any offence in India, for the purposes of the provisions relating to visa cancellation under s.109, an answer to a question was incorrect, even if the person who gave the answer or caused the answer to be given did not know the answer was incorrect. The Tribunal referred to independent information from an Indian legal advice service which indicated that the circumstances under which the dishonour of a cheque took place were irrelevant, that is, an offence was made out for the mere act of the dishonour of a cheque, whether or not ‘cheating’ was involved. The Tribunal also found that despite the fact that the “Execution of Arrest Warrant” document showed that the summons had been sent a number of times without being able to be served, it was not satisfied that this showed the applicant had absconded as claimed, and the Tribunal was not satisfied that the applicant had knowledge of the arrest warrant at the time of the visa application. The Tribunal found that the arrest warrant did not of itself show that the applicant had committed a serious criminal act, and that in light of the nature of the offence, the Tribunal considered that the correct information would not have led to his visa application being refused. The Tribunal’s view was reinforced by the additional information provided by the applicant’s lawyer who submitted that an arrest warrant should not have been executed, and noted that the matter had been satisfied by the payment of money in 2007. The Tribunal also noted that the applicant’s spouse was a student, and that if the applicant’s visa remained cancelled, she too would have to leave Australia. The Tribunal therefore decided that there was non-compliance by the applicant under s.107, however, it considered that the decision to exercise the discretion to cancel the applicant’s protection visa was not the preferable decision in the circumstances of this case. Accordingly, the Tribunal set aside the decision under review.
March 2010
0908311
16 March 2010, Sydney
Ms P Summers, Member
STUDENT (TEMPORARY) (CLASS TU)) – SUBCLASS 572 – VOCATIONAL EDUCATION AND TRAINING SECTOR – CANCELLATION – S.137J – NON-REVOCATION – INEFFECTIVE NOTIFICATION – A delegate of the Minister refused to revoke the automatic cancellation of the applicant’s Subclass 572 visa because the delegate was satisfied that the non-compliance with the satisfactory course progress condition was not due to exceptional circumstances beyond the visa holder’s control. On 29 July 2009, The Sydney Business & Travel Academy issued to the applicant a written notice under s.20 of the Education Services for Overseas Students (ESOS) Act which stated that the applicant did not achieve satisfactory course progress in the Advanced Diploma of Hospitality Management. It stated that the applicant’s student visa would be automatically cancelled at the end of the 28th day after the date of the notice unless the applicant took one of two options outlined for attendance at a DIAC office to discuss her situation with a Departmental officer. The applicant did not comply with the notice or otherwise attend within 28 days of the date of the notice. The applicant’s visa was therefore automatically cancelled under s.137J on 27 August 2009. On 28 August 2009 the applicant wrote to the Minister seeking revocation of the automatic cancellation of her Subclass 572 visa as she claimed that two months after starting the Advanced Diploma course she heard that her aunt, to whom she was close, was sick in Germany with no-one to look after her. The applicant claimed that she was stressed and had headaches worrying about her aunt, and she sometimes stayed home instead of attending the course. In April 2009, the applicant said she was asked by the education provider to make an appointment to discuss her situation. She made an appointment for 28 May 2009 but she claimed that the education provider’s representative forgot the appointment and she did not hear from the education provider after that. When she engaged a migration agent to contact the education provider on 27 August 2009, she was told that she had already been reported to the Department. She says that she did not receive an email from the education provider about this. With the submission, the applicant provided copies of medical certificates with English translations concerning the hospital treatment of a woman in Germany in December 2008.
Held: Decision under review set aside.
The applicant sought review of a decision made under s.137L of the Act not to revoke the automatic cancellation of her Student visa. The provisions of s.137J were purportedly engaged by a notice that The Sydney Business & Travel Academy sent to the applicant with the intention of complying with s.20 of the ESOS Act because the applicant had breached a prescribed condition of the visa. The notice was dated 29 July 2009. The Tribunal noted that the legislative regime at that time was relevantly indistinguishable from that considered by the Court in Hossain and Mo. On the authority of those decisions, the Tribunal found that in this case, the notice sent to the applicant was ineffective for s.20 of the ESOS Act and s.137J of the Act because there was, at the time, no prescribed condition for the purposes of s.20. Therefore, the Tribunal found that the applicant’s visa was not cancelled and that there was nothing to revoke. Accordingly, the Tribunal set aside the decision under review to refuse to revoke the automatic cancellation of the applicant’s Subclass 572 Vocational Education and Training Sector visa and substituted a decision that the visa was not cancelled.
February 2010
0905992
26 February 2010, Sydney
Dr Irene O’Connell, Senior Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 573 – HIGHER EDUCATION SECTOR – CANCELLATION – S.116(1)(b) – CONDITION 8202(1)(b) – EXCEPTIONAL CIRCUMSTANCES – A delegate of the Minister cancelled the applicant’s Subclass 573 visa under s.116(1)(b) on the basis that the applicant had breached Condition 8202 of his student visa. The applicant’s education provider certified the applicant had not achieved satisfactory course progress and, therefore, he had failed to meet the requirements of condition 8202(3). The education provider also provided the Department with intervention strategies adopted, copies of a warning letter and the intention to report letter addressed to the applicant. The applicant informed the Department that he achieved average marks and had difficulty keeping up with the course which resulted in unsatisfactory results. He claimed he did not have the competency for the course and he decided to study another course. The applicant later claimed his mother had a heart condition. He claimed he often spoke with her at night and he was unable to sleep or concentrate on his studies due to his concern for her. He provided a medical report which described his mother as unfit for work. He claimed he accepted that he failed to make satisfactory course progress and breached condition 8202 due to the exceptional circumstances of his mother’s ill health. The applicant claimed his mother had difficulty walking and a doctor had indicated it could be a coronary condition which may result in paralysis. He claimed his mother was better now but still not fit. The applicant claimed he did not mention his mother’s ill health to the Department as a cause of his failure to study because he did not know whether the Department would accept that as a reason. The applicant provided a further medical certificate which stated his mother was hospitalized for coronary artery disease. The applicant’s adviser submitted that the applicant was a guardian for his brother and to cancel the applicant’s visa would also jeopardize his brother’s position in Australia.
Held: Decision under review affirmed.
The Tribunal found the education provider certified the applicant had not achieved satisfactory course progress, therefore not complying with condition 8202(3)(a) of his visa, and a ground for cancellation existed. The Tribunal accepted, on the basis of the medical certificates provided that the applicant’s mother may not have been in good health and may have undergone a period of hospitalization at the time of the applicant’s non compliance. The Tribunal did not accept this was an exceptional circumstance leading to his non compliance. The Tribunal did not find that the applicant’s mother had a sudden, dramatic or devastating loss of health which required his sudden return home. The Tribunal did not find that a parent’s ill health set the applicant apart from other persons. The Tribunal noted the applicant informed the Department about his failure to make satisfactory course progress and his desire to take up alternative studies but did not mention his mother’s poor health as a reason for his failure in his studies. The Tribunal was unconvinced by his explanation that he did not raise his mother’s ill health to the Department because he did not think the Department would accept this reason. The Tribunal considered that if the applicant’s mother’s ill health was exceptional and of such concern that it caused the applicant’s non-compliance then he would have raised it at the Departmental level. Accordingly, the Tribunal was satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control and such circumstances were prescribed circumstances in which the visa must be cancelled in accordance with s116(1)(b) of the Regulations.
January 2010
0806602
29 January 2010, Sydney
Mr R Derewlany, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 572 – CL.572.224(a) – PUBLIC INTEREST CRITERION 4013(1)(b) – CONDITION 8202 – COMPASSIONATE AND COMPELLING – A delegate of the Minister refused to grant a Subclass 572 visa on the basis that the delegate was not satisfied the visa applicant satisfied cl.572.224 of the Regulations, as the visa applicant did not satisfy Public Interest Criterion (PIC) 4013. The applicant claimed a notice was sent to him which advised he had breached condition 8202 and his visa would be automatically cancelled. The applicant claimed he did not know why his visa was cancelled or the basis for it. He claimed his circumstances in Egypt were difficult as his mother had died and this significantly impacted upon him. He claimed his father remarried soon after and treated him negatively and that while he was in Australia a cousin died and this impacted on him and created psychological problems. He claimed because of these issues he did not attend college for 4 months. He claimed that he completed 6 months of an IT course but no certificate was provided and, when he asked for one, he discovered that the college had closed. The applicant also claimed that he studied for 6 months in a business course but did not receive any statement or certificate. He claimed he was aware of the cancellation when he applied for a further student visa and the application was refused. He claimed the Department should have sent letters about his status and that he should have an opportunity to know what he had done wrong, and it was unfair the visa was cancelled. He claimed not to know about his right to seek a revocation of the cancellation and only found out when he applied for a further visa. He claimed he was currently studying and if the visa were not granted he would be unable to apply for residence under the general skilled migration program. The applicant claimed his further intended studies in a Masters degree would inject funds into the Australian economy and that he wanted to apply for migration as a teacher, and that this would contribute skills to the Australian society. He also claimed he had provided carer assistance to a person whose interests would be adversely affected if his visa were not granted.
Held: Decision under review affirmed.
The Tribunal found the applicant was affected by the risk factor in PIC 4013 and that the previously held student visa was cancelled and the cancellation not revoked. The Tribunal found the visa application needed to be made more than 3 years after cancellation, as stated in PIC 4013, unless there were compassionate or compelling circumstances to justify a grant of the visa within 3 years. The Tribunal found the visa application was less than 3 years after cancellation of the previous student visa. The Tribunal was satisfied that the applicant’s studies at the Masters degree level would inject funds into the Australian economy through fees, taxes, living expenses and employment, however, the Tribunal was not satisfied that the applicant’s future plans of applying for skilled migration in teaching were compelling circumstances. The Tribunal accepted that the applicant may have provided carer assistance to an Australian citizen, but was not satisfied that this constituted compassionate or compelling circumstances. The Tribunal was not satisfied that this person would not have been able to obtain assistance from another person or the community, or that the circumstances were so powerful or of such a compassionate nature to justify the grant of the visa. The Tribunal accepted the applicant may have faced difficulties in respect of his personal situation in Egypt, however, the Tribunal was not satisfied that there were compelling or compassionate circumstances to justify the grant of a visa within 3 years of the cancellation of the previous visa. Accordingly, the Tribunal found the applicant did not meet the requirements of PIC 4013 for the purposes of cl.572.224(a).
0908309
27 January 2010, Sydney
Ms N Dougall, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 573 – HIGHER EDUCATION SECTOR – CANCELLATION – S.116(1)(b) – BREACH OF CONDITION 8202 – A delegate of the Minister cancelled the applicant’s Subclass 573 visa on the basis that his education provider, King’s International College Ltd (KIC), had certified that the applicant did not achieve satisfactory course attendance and found that he had breached condition 8202 of his student visa. Evidence before the Tribunal indicated that KIC wrote warning letters to the applicant in relation to his non-attendance on 20 August 2009 and 3 September 2009 and that on 3 September 2009, KIC issued the applicant with a notice pursuant to Section 20 of the Education Services for Overseas Students (ESOS) Act 2000. On 11 September 2009, the applicant was issued with a Notice of Intention to Consider Cancellation and he responded to this notice on 16 September 2009. He claimed in his response that KIC’s reporting of his unsatisfactory course attendance was incorrect as he had been enrolled at another education provider, Imagine Education Australia (Imagine), from 3 August 2009. He also claimed that discriminatory treatment at KIC had led him to transfer to another college and had made it difficult for him to obtain a letter of release from them. The applicant claimed that this constituted exceptional circumstances beyond his control. He provided evidence of having made a complaint to the Anti-Discrimination Commissioner in relation to the treatment he and other Indian students had received at KIC. The applicant also stated that he had changed colleges in accordance with Standard 7 of the ESOS Act which allowed him to do so after 6 months. He stated that he informed KIC of this change on 13 July 2009 and requested a release letter but was not provided with one. He claimed to have written to KIC again on 27 July 2009, as he had enrolled at Imagine and the course was to commence on 3 August 2009 but again, KIC refused his application for a release letter and did not provide him with a statement of attainment. He claimed that on that day he also went to a Departmental office to update his Confirmation of Enrolment and the officer at the counter stated that there was no problem as he had completed 6 months study at KIC. The applicant stated that he went to KIC again to obtain a statement of attainment but was refused once more. On 8 October 2009, the applicant’s Subclass 573 visa was cancelled in accordance with of section 116(1)(b), 116(3) and regulation 2.43(2)(b).
Held: Decision under review set aside
The Tribunal found that the applicant had not complied with condition 8202(3)(b) as his education provider, KIC, had certified him for the Certificate III in Hospitality as not achieving satisfactory course progress on 3 September 2009. The Tribunal referred to the applicant’s claim that his treatment at KIC caused him to transfer to another college to study and that this treatment constituted an exceptional circumstance beyond his control but noted that his evidence at hearing on this issue contained internal inconsistencies and did not accord with the evidence of two other students who studied at KIC whose circumstances were similar to the applicant’s. The Tribunal referred to the second warning letter in relation to the applicant’s attendance, issued by KIC on 20 August 2009, which advised that he had 20 working days from the date of the letter to make an appeal. The Tribunal calculated that 20 working days from the date of the letter would have been 17 September 2009, not 3 September 2009, when the Section 20 notice was issued. The Tribunal also found that 20 working days from the date of the first warning letter, dated 6 August 2009, would also have fallen after the date the Section 20 notice was issued. The Tribunal referred to the Full Federal Court decision Maan v MIAC [2009] FCAFC 150 which confirmed that it is the certification by the education provider which constitutes non-conformity with the condition. It found that in this case the certification was issued prior to the appeal period concluding and emphasised that although an applicant may not lodge an appeal, it was important that an education provider abide by its own appeal policies and procedures as well as the code in relation to reporting students to the Department. Based on this information, the Tribunal found that the applicant’s claimed circumstances were exceptional circumstances beyond his control and therefore the applicant’s breach of condition 8202 was due to exceptional circumstances beyond his control. Accordingly, the Tribunal concluded that the visa should not be cancelled.
0909341
25 January 2010, Sydney
Mr A Jacovides, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 573 – (HIGHER EDUCATION SECTOR) – CANCELLATION – S.116 – CONDITION 8202 – A delegate of the Minister cancelled the applicant’s student visa in accordance with s.116(1)(b) after finding that the applicant did not comply with the requirements of condition 8202 of his student visa. The delegate was satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. The applicant’s adviser provided a submission to the Tribunal claiming that the applicant diligently attended classes but he was often late because he lived in the city and he had to travel a long distance to get to the Sydney Institute of Business and Technology Pty Ltd (SIBT) campus at Macquarie University. The adviser stated that he had to get up early to get to class and when he was late, even 15 to 20 minutes, he was marked as not attending. The adviser stated that in July 2009 the applicant decided to transfer to Insearch at the University of Technology (UTS) and that on 1 September 2009 he was offered a place in a course. The adviser stated that he “mistakenly believed” that he did not have to attend his SIBT course because he was intending to attend the UTS course. He further claimed that the applicant was not told by Insearch that he needed a release letter from SIBT however when SIBT was approached by the applicant to obtain a release letter he was instead reported to the Department for non-attendance. The adviser further claimed that the applicant was an 18 year old boy who was unfamiliar with conditions and requirements of his student visa. A ‘student attendance report’ dated 24 January 2010 was provided to the Tribunal stating that the applicant had attended 76.19% of classes this semester while he attended 44.05% of last semester. The applicant claimed that there were exceptional circumstances beyond his control which led to his breach of condition 8202. He claimed that it took 90 minutes to reach the SIBT campus. He further claimed that he was intending to transfer to another course and SIBT did not provide him with the release letter he required.
Held: Decision under review affirmed.
The Tribunal found that the applicant’s education provider had certified that the applicant had not achieved satisfactory course attendance. The Tribunal also found that the certificate was of a kind that engaged condition 8202(3) and found that the applicant had not complied with condition 8202(3)(b). The Tribunal accepted that the applicant found it difficult to commute from his home to the SIBT campus however, the Tribunal was not satisfied that these difficulties constituted exceptional circumstances beyond the applicant’s control. The Tribunal found that the location of the applicant’s residence was a matter within his control. The Tribunal also considered the applicant’s claim that SIBT did not provide him with the release letter he required to transfer to another course. After considering all the evidence provided by the applicant and his adviser relating to this issue, the Tribunal formed the view that the applicant’s education provider observed the necessary procedures and it was the applicant who did not take the necessary action to prevent the certification. The Tribunal found that the applicant’s immigration predicament was the result of his own actions and that he did not attend the course as he was required to do, despite a warning from his education provider giving him an opportunity to rectify the situation. Therefore, the Tribunal found that the applicant failed to meet the requirements of condition 8202 of his student visa due to his own negligence. Accordingly, the Tribunal was satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control and the Tribunal affirmed the decision to cancel the applicant’s visa.
0908940
7 January 2010, Sydney
Ms A MacDonald, Senior Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 573 – HIGHER EDUCATION SECTOR – NON-REVOCATION – BREACH OF CONDITION 8202(3) – EXCEPTIONAL CIRCUMSTANCES – A delegate of the Minister decided not to revoke the applicant’s visa cancellation because he had not demonstrated that the breach was due to exceptional circumstances beyond his control. The applicant’s university issued him with a notice under s.20 of the Education Services for Overseas Students Act 2000 (ESOS Act) for not achieving satisfactory course progress. The applicant did not comply with the notice or attend an Immigration office within the prescribed timeframe and, therefore, his visa was automatically cancelled. The applicant claimed he did not breach condition 8202 and, if he had, it was due to the lack of provision of necessary information and assistance from his university. He claimed he misunderstood the university system in Australia and that there were exceptional circumstances beyond his control for failing his Information Technology course. He claimed he had to adapt to a totally new teaching method and a new area of study at the same time and that he did not receive a warning or exclusion letter or the s.20 notice from the university. He claimed he failed 2 out of 3 subjects in the first semester because a dust storm worsened his grandmother’s lung condition. He claimed he did not attend the exam in Information Technology because he had changed courses. He claimed he was unaware he had failed all his subjects and the university did not inform him that he should attend the exams. He claimed he was concerned for his mother’s safety due to an outbreak of swine flu where she worked. He claimed the dust storm and swine flu were exceptional circumstances and that they contributed to the negative impact on his study.
Held: Decision under review affirmed.
The Tribunal found the applicant breached condition 8202(3) when his university issued him a written notice under s.20 of the ESOS Act certifying that he had not achieved satisfactory course progress in his Masters of Information Technology. The Tribunal invited the applicant to appear before it to give evidence and present arguments, however, he failed to appear, or contact the Tribunal to seek a postponement of the hearing. Based on the available information, the Tribunal was not satisfied that the breach was due to exceptional circumstances beyond the applicant’s control, given the lack of details in his claims and the lack of opportunity to explore the claims or their veracity at a hearing. Accordingly, the Tribunal affirmed the decision not to revoke the automatic cancellation of the Subclass 573 Higher Education Sector visa formerly held by the applicant.
Other Related Australian Immigration Articles:
Australian Immigration: Appeal Decisions 2010
Australian Immigration: Appeal Decisions 2009
Australian Immigration: Appeal Decisions 2008 - coming soon
- Business & Skills Visas
- Family Visas
- Partner Visas
- Student Visas
- Other Visas
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