Migration Review Tribunal Decision Summaries
Australian Immigration - Student Visas
February 2009
0803538
12 February 2009, Melbourne
Mr T Connellan, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 573 – CL.573.235 – CONDITION 8202 – COMPLIED SUBSTANTIALLY – A delegate of the Minister for Immigration and Citizenship refused to grant the Australian immigration visa applicant a Student (Temporary) (Class TU) visa on the basis that he did not satisfy cl.573.235 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he had not been enrolled in a registered course so had not complied substantially with condition 8202(2)(a) of his previous visa. The Australian immigration visa applicant claimed he was not enrolled because his parents were temporarily unable to pay his school fees. He claimed he did not realise his failure to enrol caused him to be in breach of his visa. The Australian immigration visa applicant claimed he had re-enrolled and had nearly completed the course. He expressed remorse over what had happened and claimed it would be catastrophic if he could not finish his studies in Australia.
Held: Decision under review set aside.
The Tribunal found the Australian immigration visa applicant had not strictly complied with condition 8202 but noted substantial compliance with the conditions to which his previous visa was subject was sufficient. It considered that the purpose of condition 8202 was to ensure that the people to whom student visas were granted were genuine students. The Tribunal accepted that his family’s financial situation was the sole reason for the Australian immigration visa applicant’s non-enrolment and, at the time, he did not realise the failure caused him to be in breach of his visa. The Tribunal recognised the breach was only for one semester and found its effect had little significance on the Australian community. The Tribunal accepted that at no stage had he deliberately flouted his visa conditions and, had he been aware of the ramifications, alternative arrangements would have been made. It found being unable to pay the fees was a legitimate reason for failing to enrol and the circumstances leading to the breach were beyond the Australian immigration visa applicant’s control. It also took note of his impassioned pleas about the impact of a visa refusal and that his attendance and performance would be exemplary if granted another opportunity. The Tribunal found the Australian immigration visa applicant complied substantially with the conditions of his last held visa and was satisfied he met cl.573.235 of the Regulations.
March 2009
0802807
27 March 2009, Melbourne
Ms M Hodgkinson, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 572 (VOCATIONAL EDUCATION AND TRAINING SECTOR) – CL.572.223(2)(a)(i)(A) – COMPLETED A SUBSTANTIAL PART – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 572 visa on the basis that he did not have the requisite English language proficiency set out in cl.5A404(d)(iii) of the Regulations because he had not successfully completed a substantial part of a course (other than a foundation course) that was conducted in English and was leading to a qualification from the Australian Qualifications Framework (AQF) at the Certificate IV level or higher. The Australian immigration visa applicant claimed he was enrolled in an Advanced Diploma of Hospitality Management (Commercial Cookery) and submitted his course transcript showing that he had passed 21 out of 61 units. However, he claimed he had completed over 50% of a Certificate IV of Hospitality (Commercial Cookery) qualification nested in the Advance Diploma as per the requirements of the Hospitality and Tourism Training Package.
Held: Decision under review set aside
The Tribunal accepted that the Australian immigration visa applicant had enrolled in an Advanced Diploma in Hospitality course and had completed 50% of the nested Certificate IV in Hospitality course in the 2 years prior to the application lodgement. The Tribunal noted that while it was guided by the Department’s policy, it was not bound by it and if policy required more than the legislation stated, it was unlawful and an error on the part of the Tribunal to apply it. Subparagraph 5A404(d)(iii) of the Regulations requires that an Australian immigration visa applicant successfully completed a substantial part of a course leading to a qualification from the AQF at the Certificate IV level or higher. The Tribunal found the policy departed from the legislation in referring to the course in which the Australian immigration visa applicant was enrolled. The Tribunal considers that the policy should not be followed to the extent that it required that the Australian immigration visa applicant have completed a substantial part only of the course in which he was enrolled. The Tribunal further found that while the policy on nested courses was ambiguous there was no basis for requiring the Australian immigration visa applicant to complete the whole of the nested course, which would put him in a worse position than a student who had enrolled in a lower course. Consequently, the Tribunal was satisfied that, although it was not the course in which he was enrolled, in the 2 years prior to the application being lodged, the Australian immigration visa applicant successfully completed a substantial part of a course that was conducted in English and was leading to a qualification from the AQF at the Certificate IV level or higher, within the meaning of cl.5A404(d)(iii) of the Regulations. Accordingly, the Australian immigration visa applicant met the requirements of cl.572.223 for the grant of a Subclass 572 visa.
0808895
27 March 2009, Melbourne
Ms K Synon, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 573 (HIGHER EDUCATION SECTOR) – CANCELLATION – S.116(1)(b) – CONDITION 8202 – A delegate of the Minister cancelled the Australian immigration visa applicant’s Subclass 573 visa under s.116(1)(b) of the Act on the basis that he did not comply with Condition 8202 of the Regulations because his education provider certified him as not achieving satisfactory course progress for s.19 of the Education for Overseas Students Act 2000 (the ESOS Act) and Standard 10 of the National Code of Practice for Registration Authorities and providers of Education and Training to Overseas Students (National Code). The Australian immigration visa applicant claimed the original notice under s.20 of the ESOS Act containing the certification included the wrong Certificate of Enrolment and the Department decided not to cancel the visa. He claimed he was then issued with a second notice. He further claimed the reasons his visa should not be cancelled were the same as when the Department originally decided not to cancel the visa. That is, the Australian immigration visa applicant claimed he passed 12 out of 13 subjects and had completed all but a two-day practical component for his Certificate IV in Hospitality (Commercial Cookery). He claimed to be awaiting an allocated date for that component and had started a Diploma in Hotel Management. He also claimed problems with his living arrangements had been resolved and he had intended to appeal the certificate but his friend had forgotten to send the letter.
Held: Decision under review set aside
The Tribunal was satisfied the Australian immigration visa applicant did not comply with a condition of his visa and the ground for cancellation in s.116(1)(b) of the Act existed. It found the Australian immigration visa applicant’s course provider had, as a matter of fact, certified that he had not achieved satisfactory course progress for s.19 of the ESOS Act and Standard 10 of the National Code 2007. Therefore, he had not complied with Condition 8202(3)(a) of the Regulations. However, the Tribunal noted that a letter from the course provider sent, as part of its complaints and appeal process, between the first and second s.20 notices incorrectly advised the Australian immigration visa applicant of unsatisfactory attendance. As such, the Tribunal was satisfied that the certification process was defective in that it failed to properly advise of and implement an appropriate internal handling and appeals process as required under Standards 10.6 and 8 of the National Code. The Tribunal found non-compliance was due to exceptional circumstances beyond the Australian immigration visa applicant’s control and therefore prescribed circumstances requiring mandatory cancellation in accordance with s.116(3) did not exist. In considering whether to exercise its discretion to cancel the visa, the Tribunal noted that, rather unusually, the Department had granted the Australian immigration visa applicant continuing (restricted) study rights suggesting that both the Department and the education provider were prepared for the Australian immigration visa applicant to continue in his studies. It also considered the fact that he had only failed one course and the education provider’s handling of the matter relevant. Accordingly, the Tribunal concluded the visa should not be cancelled.
0808918
12 March 2009, Sydney
Ms D Dimitriadis, Member
STUDENT (TEMPORARY) (TU) – SUBCLASS 571 (SCHOOLS SECTOR) – CANCELLATION S.137L – CONDITION 8202(3)(b) – COURSE ATTENDENCE – A delegate for the Minister refused to revoke the automatic cancellation of the Australian immigration visa applicant’s Subclass 571 visa under s.137L of the Act. The Australian immigration visa applicant’s education provider sent him a notice under s.20 of the Education Services for Overseas Students Act 2000 (the ESOS Act) certifying that he had not achieved satisfactory course attendance and had breached Condition 8202(3)(b) of the Regulations. The Australian immigration visa applicant failed to respond to the notification within 28 days and the visa was automatically cancelled under s.137J of the Act. The Australian immigration visa applicant claimed that his non-compliance was due to abdominal pain that prevented him from attending classes. The Australian immigration visa applicant also claimed that sometimes the pain was so strong that he could not get out of bed. He claimed he went to see a herbalist who told him to take Chinese medicines for a few months, but when this did not work he went to a Western doctor who diagnosed a peptic ulcer and prescribed medication. The Australian immigration visa applicant submitted a medical report stating that, although subsequent tests may provide evidence of an earlier condition, tests conducted during the review showed no disease, lesions or infections. The Australian immigration visa applicant further claimed that if he was more than 10 minutes late for class he was marked absent, but he still went because he wanted to learn. He also claimed he was the oldest son and his parents could only afford to send him to study in Australia. He claimed to need Australian qualifications in order to obtain a good job so he could care for his parents according to Chinese tradition.
Held: Decision under review affirmed
The Tribunal found no failure to accurately monitor the Australian immigration visa applicant’s attendance, give him access to a complaints or appeals process, or concerns about errors, inappropriate actions or omissions in the process or reporting of the non-compliance. Therefore, it was satisfied that the Australian immigration visa applicant was sent a notice under s.20 of the ESOS Act as required by s.137J of the Act and the provisions that activated the automatic cancellation of the visa were enlivened. The Tribunal was further satisfied that the Australian immigration visa applicant’s education provider had certified the Australian immigration visa applicant as not achieving satisfactory course attendance and found that he breached Condition 8202(3)(b).The Tribunal did not accept that the Australian immigration visa applicant’s abdominal pain was so severe as to cause him to be unable to attend class or be late for school. It found this inconsistent with not going to a doctor until after his visa was cancelled and his statement he did not see a doctor because it was too much hassle, not a serious condition and he would get better. It also noted there was no medical evidence he suffered further pain between going to the herbalist and attending the doctor and tests showed no disease, lesions or infections. The Tribunal considered the Australian immigration visa applicant’s evidence about his hopes and his family’s hopes for him, and his obligations to support his parents when they became old. However, it was satisfied that his non-compliance with Condition 8202 was not due to exceptional circumstances beyond his control and the automatic cancellation of the Australian immigration visa applicant’s student visa could not be revoked.
April 2009
0901977
21 April 2009, Melbourne
Dr D Thomas, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 571 (SCHOOLS SECTOR) – CANCELLATION – S.116 – R.2.43(2)(b) – CONDITION 8202(2)(a) – EXCEPTIONAL CIRCUMSTANCES BEYOND Australian immigration visa applicant’S CONTROL – A delegate of the Minister cancelled the Australian immigration visa applicant’s Subclass 571 visa under s.116(1) of the Act on the basis that the Australian immigration visa applicant had not complied with Condition 8202(2)(a) of the Regulations as he was not currently enrolled in a registered course. The Australian immigration visa applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.119 of the Act. The Australian immigration visa applicant claimed that he was unaware he had to inform the education provider or the Department about ceasing his studies and did not know the reason for the visa cancellation. The Australian immigration visa applicant claimed he ceased studying in August 2008 as he had run out of money and needed to work to pay for study. He claimed he had failed his course, lost his wallet with $1,000, was over 18 years old and wanted to experience Australian life. He found a job and began working in September 2008. The Australian immigration visa applicant confirmed he was not presently enrolled in a course. He claimed he was thinking of studying again and gave a number of reasons for the lateness in applying for a subsequent student visa.
Held: Decision under review affirmed
The Tribunal found that the NOICC provided to the Australian immigration visa applicant clearly set out the grounds of the alleged non-compliance and the Australian immigration visa applicant’s response to the NOICC indicated that he understood the nature of the alleged non-compliance. Consequently, the Tribunal was satisfied that the Australian immigration visa applicant had sufficient information to adequately understand and therefore, respond to the NOICC. The Tribunal found that the Australian immigration visa applicant had breached Condition 8202(2)(a) as he had not been enrolled in a registered course since August 2008. The Tribunal noted that the Australian immigration visa applicant already held a student visa when he was working and hence, it gave no weight to his reasons for discontinuing his enrolment for over seven months. The Tribunal considered whether the non-compliance was not due to exceptional circumstances beyond the Australian immigration visa applicant’s control. The Tribunal found that the Australian immigration visa applicant’s decision to leave his course and work were neither exceptional circumstances nor beyond his control. Based on the evidence, the Tribunal was satisfied that the non-compliance with Condition 8202 was not due to exceptional circumstances beyond the Australian immigration visa applicant’s control. Such circumstances were prescribed circumstances requiring mandatory cancellation in accordance with s.116(3) and r.2.43(2)(b). Accordingly, the Tribunal affirmed the decision to cancel the Australian immigration visa applicant’s visa.
May 2009
0807417
11 May 2009, Melbourne
Mr D Young, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 573 (HIGHER EDUCATION SECTOR) – CANCELLATION – S.116(1)(b) – CONDITION 8202(3)(a) – SATISFACTORY COURSE PROGRESS – A delegate of the Minister cancelled the Australian immigration visa applicant’s Subclass 573 visa under s.116(1)(b) of the Act on the basis that he did not comply with Condition 8202 of the Regulations as his education provider had certified that he had not achieved satisfactory course progress under s.19 of the Education Services for Overseas Students Act 2000 and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (the National Code). The Australian immigration visa applicant claimed that he had failed the course because he had not been given performance feedback, that the teaching was third-rate and that his mother had been ill. A Department of Education, Employment and Workplace Relations report stated that the education provider had complied with all relevant requirements under the National Code and, specifically, that the Australian immigration visa applicant had been counselled on 3 occasions about his poor academic performance and that he had been sent a Notice of Intention to Report. The Australian immigration visa applicant denied that he had been counselled or sent a notice. He claimed he had not been advised or invited to participate in any complaints or appeal process and that his teacher had advised him that his attendance and progress were both satisfactory. The Australian immigration visa applicant claimed he had completed several tests and assignments but had never been given any results or marks and that the test papers were never handed back to students. He claimed that all members of the class were simply told that they had passed. Testimonials from fellow students of Meridian College were provided in support of the Australian immigration visa applicant’s claims.
Held: Decision under review set aside
In deciding whether the Australian immigration visa applicant had breached Condition 8202(3)(a), the Tribunal considered whether the education provider’s records were designed, administered and ‘quality-assured’ in a manner that would satisfy a reasonable and prudent decision maker that they had provided accurate and reliable evidence that the visa holder had been treated in accordance with the requirements of the National Code 2007. The Tribunal found the evidence provided by the Australian immigration visa applicant raised serious doubts regarding the accuracy of the education provider’s claims and associated records and that the Australian immigration visa applicant’s testimony was consistent with oral and documentary evidence presented by other students of the college. Despite evidence of having a record of the Australian immigration visa applicant’s actual address, the Tribunal found that the education provider had misaddressed a number of letters and notices which were sent to the Australian immigration visa applicant. In addition, the Tribunal found that only one of the counselling forms was countersigned by the Australian immigration visa applicant. However, as the onus in establishing that grounds existed for the cancellation of the visa was on the Minister and the Tribunal, with the exception of a single signed counselling form, there was insufficient evidence for the Tribunal to counter the Australian immigration visa applicant’s claims and sustain a decision for the visa to remain cancelled. The Tribunal accepted that the education provider may have designed and established procedures conforming to the relevant National Code requirements. However, and more relevantly, the Tribunal was not satisfied that the education provider’s records and administrative practices were such as to provide credible evidence that the required safeguards and remedial processes were, in fact, made available to the Australian immigration visa applicant. Such evidence was critical in the contemplation of breach action. Since the education provider’s records were the sole basis of the claim that there was compliance with the requirements of the National Code, the Tribunal was not satisfied that the visa had been properly cancelled. Therefore, the Tribunal set aside the decision under review and substituted a decision that the visa should not be cancelled.
0902123
7 May 2009, Sydney
Ms K Raif, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 573 (HIGHER EDUCATION SECTOR) – CANCELLATION – S.137J – SATISFACTORY COURSE PROGRESS – A delegate of the Minister refused to revoke the automatic cancellation of the Australian immigration visa applicant’s subclass 573 visa under s.137J of the Act. The education provider sent the Australian immigration visa applicant a notice under s.20 of the Education Services for Overseas Students Act 2000 (the ESOS Act) certifying that he had not achieved satisfactory course progress which was a breach of condition 8202 of his student visa. When the Australian immigration visa applicant failed to respond to the notification within 28 days, his visa was automatically cancelled. The Australian immigration visa applicant made a request for revocation of the automatic cancellation and supplied evidence to the Department that he had sought release from his education provider, Griffith University, in June 2008 and that the University had agreed to a transfer. The Australian immigration visa applicant claimed he had then enrolled in a different course at TAFE QLD in July 2008. The delegate acknowledged that the Australian immigration visa applicant withdrew from the course at Griffith University in June 2008 and that he was enrolled with another education provider, but noted that he also withdrew from that provider and had not commenced study in another course. In support of the review, the Australian immigration visa applicant provided evidence that he had enrolled in TAFE QLD in July 2008, he withdrew from that course in October 2008 and he enrolled in another course commencing in April 2009.
Held: Decision under review set aside
The Tribunal considered whether the notice which Griffith University sent to the Australian immigration visa applicant in October 2008 was a notice under s.20 of the ESOS Act. The Tribunal also considered whether the Australian immigration visa applicant was an accepted student at Griffith University at the time the notice was sent or whether he had been ‘released’ from the University. The Tribunal accepted evidence that the Australian immigration visa applicant had been ‘released’ from Griffith University in June 2008 and that in July 2008 he was enrolled at TAFE QLD; however, he had commenced studies elsewhere. Accordingly, the Tribunal found he was not an ‘accepted student’ of Griffith University within the meaning of s.5 of the ESOS Act at the time of the breach. Thus, the s.20 Notice issued by the University was not sent to an ‘accepted student’. The Tribunal was therefore of the view that s.137J was not enlivened and the Australian immigration visa applicant’s visa should not have been cancelled automatically. The Tribunal considered that none of the matters raised by the delegate regarding the timing of the Australian immigration visa applicant’s withdrawal from Griffith University, his failure of all four subjects in Semester 1, 2008 and his enrolment in a different course for which his studies had not commenced, were relevant to the review. The Tribunal found that sending a s.20 Notice to a former student who was no longer an accepted student and no longer enrolled in a registered course with the education provider, and a requirement for a student to maintain satisfactory course progress in a course in which the student was no longer enrolled, comprised exceptional circumstances beyond the student’s control which led to the breach of condition 8202. Thus, even if there was a valid automatic cancellation of the student visa held by the Australian immigration visa applicant, the Tribunal found that the breach was due to exceptional circumstances beyond the student’s control. Consequently, the Tribunal set aside the decision to cancel the Australian immigration visa applicant’s Subclass 573 visa and substituted a decision that the visa was not cancelled.
June 2009
0900417
25 June 2009, Sydney
Mr J Duignan, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 573 (HIGHER EDUCATION SECTOR) – CL.573.235 – CONDITION 8202 – SUBSTANTIAL COMPLIANCE – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 573 visa on the basis that he did not satisfy cl.573.235 of the Regulations because he had not complied substantially with Condition 8202 of his previous Subclass 573 visa. The Australian immigration visa applicant held his last Subclass 573 visa between 27 September 2005 and 30 September 2006. Since then the Australian immigration visa applicant had held bridging visas which were not subject to Condition 8202. The Australian immigration visa applicant provided evidence that he was studying a Masters of Commerce at the University of NSW (UNSW) during this period. Information from the UNSW indicated that the Australian immigration visa applicant was excluded from study for 2 years from 2006 to 2008. The Australian immigration visa applicant explained that he had failed three subjects in one semester and he understood he was excluded from study. He claimed he spoke with the UNSW about his difficulties and consequently, the period of exclusion was reduced and he resumed his Masters course in Semester 2, 2007. During 2006, the Australian immigration visa applicant claimed he received a notice from the Department regarding cancellation of his student visa. He was subsequently informed by the Department that the notice issued was invalid and he claimed he was not asked to provide any further information. He claimed he did not study during 2006 as he had received the visa cancellation notice and was awaiting decisions by the Tribunal and the Federal Court. He claimed he had one examination remaining to complete his Masters of Commerce. In 2009, the Australian immigration visa applicant claimed he started a Masters of Business Administration course at Holmes College but he ceased his studies when his visa was refused.
Held: Decision under review set aside
The Tribunal found that the Australian immigration visa applicant had difficulty with his studies during 2005 resulting in notification of a breach of Condition 8202(3)(b), which requires satisfactory course progress. This led to the cancellation of his visa. The Tribunal held that the current assessment of the Federal Court in respect of Condition 8202(3)(b) was that, as the condition stood prior to 1 July 2007, there could not be non-compliance with Condition 8202(3)(b). The allegations of non-compliance and the Australian immigration visa applicant’s conduct in this respect all occurred before 1 July 2007 and, as a result, it was the view of the Tribunal that he could not be found to have not complied with Condition 8202(3)(b) by virtue of the matters giving rise to the cancellation of his visa. Therefore, this was not a basis for considering that the Australian immigration visa applicant had not substantially complied with Condition 8202. The Tribunal did not consider the Australian immigration visa applicant’s subsequent study was relevant as, after 30 September 2006, the Australian immigration visa applicant did not hold a visa with Condition 8202 attached. While subsequent notification issues arose in respect of the purported cancellation issue, this did not affect the validity of bridging visas issued nor alter the conditions to which visas held by the Australian immigration visa applicant were subject at the time. The Tribunal then considered the Australian immigration visa applicant’s compliance with Condition 8202(2) which required enrolment in a registered course of study. During 2006, the Australian immigration visa applicant was not enrolled in a registered course of study for one and a half semesters while holding a Subclass 573 visa. Following Departmental Policy, the Tribunal found that there had been substantial compliance by the Australian immigration visa applicant that he maintains enrolment in a registered course of study. In particular, during 2006, the Australian immigration visa applicant attempted to challenge the cancellation of his student visa through Departmental processes, in the Tribunal and in court. Although he was excluded from study at UNSW during this period and he was not enrolled in any other course of study, the Tribunal noted that the period of supposed exclusion was, in fact, reduced by the UNSW to allow his enrolment for further study in late 2007. This suggested that, had the Australian immigration visa applicant been able to address his cancellation issues more readily and put the matter before the UNSW, he may have been allowed to re-enrol in 2006 as there was clearly some flexibility in the enrolment ban. Therefore, the Tribunal remitted the matter to the delegate for reconsideration with the direction that the Australian immigration visa applicant met cl.573.235 of the Regulations.
0901623
23 June 2009, Sydney
Ms J Marquard, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 572 (VOCATIONAL EDUCATION AND TRAINING SECTOR) – CANCELLATION – S.107 – CL.2.41 – BOGUS DOCUMENT – A delegate of the Minister cancelled the Australian immigration visa applicant’s Subclass 572 visa on the basis that he had provided fake bank documentation in support of his visa application suggesting that he had deposited 500 000 Mauritius rupees in the bank on 11 April 2008. The Australian immigration visa applicant claimed that it had come as a shock to him that his visa had been approved based on fraudulent documents and he apologised. While he acknowledged that the bank document was fake he claimed that he was unaware of the agent’s actions until receiving the Department’s Notice of Intention to Consider Cancellation. He claimed that he had approached a Mauritian agent for assistance and paid him 200 000 rupees. He said the agent told him to transfer Rs 300 000 into a bank account for the paperwork to be completed, which he did. The Australian immigration visa applicant claimed the agent told him this was for school fees for one year and that someone would pick him up from the airport on his arrival. Once here, he found that the agent had only paid for 6 months of his school fees. He claimed he did not know the agent would use fraudulent papers on his behalf. When he tried to contact the agent, he claimed he was told that he was in gaol for fraud. He had since become aware that the agent was unlicensed, even though his licences were displayed in his office. He claimed he had now lost Rs 500 000. The delegate proceeded to cancel the Australian immigration visa applicant’s student visa as he had not given correct answers on the visa application form. The Australian immigration visa applicant said he was a genuine student striving hard to complete his studies. He said he had not submitted any fake documents with his application and he was totally unaware of any fake documents submitted. Two newspaper articles outlining the police investigation regarding student visa fraud by the agent were provided in support of the application.
Held: Decision under review set aside
The Tribunal looked first at whether there was non-compliance under s107. The Australian immigration visa applicant confirmed that an incorrect answer was given on his application form as he did not have a ‘floating rate fixed deposit’ at the Banque des Mascareignes. Consequently, the Tribunal found that there was non-compliance by the Australian immigration visa applicant in the way described in the s.107 notice. The Tribunal accepted the Australian immigration visa applicant’s evidence that he relied on his agent to fill in his forms on his behalf and to organise funding. The Tribunal found that, while it was foolish of him not to obtain a receipt for funds which he had given to the agent, it accepted that the Australian immigration visa applicant naively believed that these funds would be applied towards his fees and expenses in Australia. The Australian immigration visa applicant’s evidence was reinforced by the newspaper articles which appeared genuine and referred to the fraud committed in relation to student visa applications by the agent. The Tribunal found that, although the Australian immigration visa applicant did not have a bank account containing 500 000 rupees, he did have 500 000 rupees which the agent had taken. In reality, the Australian immigration visa applicant had access to funding which was misappropriated by a fraudulent agent. Therefore, the Tribunal was satisfied that the Australian immigration visa applicant had sufficient funds as required. The Tribunal then considered the Australian immigration visa applicant’s study record in Australia and found that he had a high attendance rate, he had passed all subjects and that he was committed to his studies and career future. It found that he had a strong desire to complete his course. The Tribunal decided that there was non-compliance by the Australian immigration visa applicant in the way described in the notice given under s.107; however, it considered that the decision to exercise the discretion to cancel the Australian immigration visa applicant’s visa was not the preferable decision in the circumstances of this case. The preferable decision was to not cancel the Australian immigration visa applicant’s Subclass 572 visa. Accordingly, the Tribunal set aside the decision under review and substituted a decision that the visa should not be cancelled.
0900983
2 June 2009, Sydney
Ms S Pinto, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 573 HIGHER EDUCATION SECTOR – CANCELLATION S.137J – CONDITION 8202 –SATISFACTORY COURSE PROGRESS – A delegate of the Minister refused to revoke the automatic cancellation of the Australian immigration visa applicant’s Subclass 573 visa under s.137J of the Act. The Australian immigration visa applicant’s education provider issued a written notice under s.20 of the ESOS Act certifying that he had not achieved satisfactory course progress in breach of condition 8202(3)(a) of the Regulations. The Australian immigration visa applicant failed to respond to the notification within 28 days and his visa was automatically cancelled. The Australian immigration visa applicant wrote to the Minister seeking revocation of the automatic cancellation of his Subclass 573 visa. The delegate accepted that the Australian immigration visa applicant’s father was unwell and that this may have affected his concentration. However, the Australian immigration visa applicant chose to sit for his exams and there was no evidence, given that the Australian immigration visa applicant had previously failed the subject 2 times, to indicate that the Australian immigration visa applicant would have passed the subject even if he had not received news of his father’s illness. The delegate stated that the University of Western Sydney provides free counselling services and there was no evidence to indicate that the Australian immigration visa applicant sought assistance. The delegate further stated that the University of Western Sydney promotes the enrolment of international students, thereby providing a multicultural learning environment. Accordingly, the delegate concluded that the non-compliance was not due to exceptional circumstances beyond the Australian immigration visa applicant’s control. The Australian immigration visa applicant claimed that his non-compliance was due to him receiving word from Norway that his father was ill and required major heart surgery. The Australian immigration visa applicant flew to Norway following his examinations and was present for his father’s quadruple bypass operation. The Australian immigration visa applicant also claimed that, as an international student, he believed that he was not given the assistance he wished and that he had difficulty settling into university life in Australia. He claimed that he has had to change universities as a result of his poor academic performance and he is now studying at Central Queensland University which offers more relevant courses and assists students to prepare for their future careers.
Held: Decision under review affirmed.
The Tribunal accepted evidence in relation to the Australian immigration visa applicant’s academic results since the commencement of the course, however, it found that the Australian immigration visa applicant had had considerable difficulty with the subject matter and unfortunately, that he had not prepared the correct cases for one examination. Based on the Australian immigration visa applicant’s history of poor academic results over a significant period, the Tribunal was not satisfied that he would have passed ‘Introduction to Business Law’, which he had previously failed on 2 occasions and for which his own evidence indicates that he had not adequately prepared, even if he had not received news of his parent’s illnesses prior to the examinations. The Tribunal found that it was within the Australian immigration visa applicant’s control to seek a deferment or special consideration in relation to his examinations which he undertook shortly after he heard news of his father’s illness, however, he failed to do so. Having regard to all of the evidence, the Tribunal was not satisfied that the Australian immigration visa applicant’s parent’s illness was an exceptional circumstance beyond the Australian immigration visa applicant’s control which resulted in the non-compliance with condition 8202(3)(a). The Tribunal accepted that the Australian immigration visa applicant is a genuine student whose results have improved considerably since he changed education providers. However, the Tribunal found that the Australian immigration visa applicant had difficulty with his chosen course and that he had not complied with condition 8202(3)(a). Therefore, the Tribunal found that the breach was not due to exceptional circumstances beyond the student’s control and that the ground for cancellation under s.116(1)(b) exists. Accordingly, the Tribunal affirmed the decision under review.
July 2009
0902991
6 July 2009, Sydney
Mr M Cooke, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 572 – VOCATIONAL EDUCATION AND TRAINING SECTOR – CANCELLATION – S.116(1)(b) – CONDITION 8202(3)(b) – EXCEPTIONAL CIRCUMSTANCES – A delegate of the Minister cancelled the Australian immigration visa applicant’s subclass 572 visa under s.116(1)(b) on the basis that the Australian immigration visa applicant was certified as having not met the attendance requirement in condition 8202. The Australian immigration visa applicant claimed his parents’ financial difficulties forced him to change his education provider, which caused his failure to meet the attendance requirement. He claimed that if he had remained with his education provider he would have met the requirement and that this was an exceptional circumstance beyond his control. He also claimed the cancellation of the remaining five weeks tuition should not have impacted his overall attendance. Although he claimed he spent months trying to get his education provider to decide whether to release him from his course, he was forced to absent himself to travel to the Gold Coast to enrol in TAFE where the fees were cheaper. This also allowed him to arrange accommodation as he was living in Brisbane. He claimed that if he had been allowed to leave when he first asked, he would have enrolled at TAFE at the correct time and he would have had a seamless transition to his new education provider. The Australian immigration visa applicant claimed that his education provider was wrong to forecast a failure of attendance by week 15 (the end of the course) when he had been given a release letter (unsupported by the education provider) to leave. The education provider stated that the Australian immigration visa applicant had 80% attendance by week 9 however his abrupt decision to cease his course meant he had breached condition 8202. The Australian immigration visa applicant claimed that he was then unable to start his new course as his visa had been cancelled.
Held: Decision under review affirmed
The Tribunal found that the education provider’s action in forecasting a failure of attendance by the Australian immigration visa applicant was a product of the requirement of condition 8202 that he attend “the registered course undertaken by the holder” on the required scheduled contact days. Accordingly, the Tribunal did not accept the Australian immigration visa applicant’s argument and found that the principle reason why he failed the attendance certification was because he absented himself from his course without permission from his education provider. As a result, the 80% attendance he had attained at week 9 evolved into a breach of condition 8202 by Week 10. This led to his certification for unsatisfactory attendance. The Tribunal found that the Australian immigration visa applicant had not complied with condition 8202 and that the ground for cancellation in s.116(1)(b) existed. The Tribunal did not accept that the claimed exceptional circumstances beyond the Australian immigration visa applicant’s control, being the sudden need to change education providers because of his family’s financial crisis, was a satisfactory basis to set aside the cancellation. The Tribunal observed that the Australian immigration visa applicant may have decided to change providers for good reason but this was not the source of his adverse certification. Although the Australian immigration visa applicant claimed that he was frustrated by the bureaucratic inertia of the eduction provider and that he was forced to take matters into his own hands, the Tribunal found that in deciding to absent himself from his scheduled course of his own volition, his action led to his certification as having unsatisfactory attendance. The Tribunal did not accept the Australian immigration visa applicant’s claimed ‘exceptional circumstances beyond the Australian immigration visa Australian immigration visa applicant’s control’ was a satisfactory basis to set aside the cancellation. Accordingly, the Tribunal was satisfied such circumstances were prescribed circumstances in which the visa must be cancelled in accordance with s116(3) of the Regulations.
August 2009
0903307
31 August 2009, Melbourne
Ms B Cremean, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 573 – HIGHER EDUCATION SECTOR – CANCELLATION – S116(1)(b) – CONDITION 8202(3)(a) – EXCEPTIONAL CIRCUMSTANCES – The Australian immigration visa applicant’s Subclass 573 visa was cancelled due to his failure to meet the requirements of Condition 8202 relating to unsatisfactory academic progress. The Australian immigration visa applicant was enrolled in a Bachelor of Business (International Business) which commenced in August 2007 and ended by 1 July 2008. In August 2008 the Australian immigration visa applicant commenced a Diploma in Multimedia at another educational institute. On 13 October 2008 the Australian immigration visa applicant’s former education provider issued a written notice pursuant to section 20 of the ESOS Act certifying that the Australian immigration visa applicant had not achieved satisfactory course progress for the Bachelor of Business course. At a Departmental interview, the Australian immigration visa applicant agreed with the breach; however he stated he had difficulties adjusting to studies and friends as well as concerns with his home stay and guardianship arrangements. He stated that he did not appeal to the education provider about their decision as he planned to transfer to another education provider. The delegate proceeded to cancel the Australian immigration visa applicant’s student visa as he found the review Australian immigration visa applicant had breached condition 8202 and that the breach was not due to exceptional circumstances beyond his control. At the Tribunal hearing the Australian immigration visa applicant stated that when he arrived in Australia he was young, he knew no one and he had trouble adjusting to cultural differences and the isolation from family and friends. He claimed he also had difficulties with his course and despite attending all his classes in 2007 he failed 4 out of 4 units. After having spoken to a student advisor it was agreed that he only do 2 units in the next semester. Despite this, he failed both units. Realising that he was not managing, the Australian immigration visa applicant transferred to a Diploma in Multimedia at another education provider in July 2008. The Australian immigration visa applicant also claimed he had spoken to the Department in August 2008 about his change of course and he had been advised that he was not required to complete a notice of withdrawal or notify his former education provider any further. He claimed he had shown the Confirmation of Enrolment to the Department at the August meeting and was assured that was all that was required. The Australian immigration visa applicant stated he was enjoying his new course which he had chosen in preference to the business course which had been chosen for him by a consultant in India.
Held: Decision under review affirmed.
The Tribunal found that the Australian immigration visa applicant’s former education provider had certified the Australian immigration visa applicant as not achieving satisfactory course progress and therefore it found that he had not complied with condition 8202(3)(a). The Tribunal then considered whether the breach was due to exceptional circumstances beyond the Australian immigration visa applicant’s control. The Tribunal noted that the Australian immigration visa applicant conceded that he failed 4 out of 4 units in 2007 and failed 2 out of 2 units in 2008. The Tribunal then considered the Australian immigration visa applicant’s claimed reasons for this failure to achieve satisfactory course progress. The Tribunal accepted that the Australian immigration visa applicant had difficulty adjusting to life in Australia, that he was having difficulties with his business course as indicated by the university’s agreement to a lighter course load in 2008, that family problems may have affected his ability to concentrate and that his agent chose the course in which he was enrolled. The issue for the Tribunal to determine was whether these factors constituted exceptional circumstances beyond the Australian immigration visa applicant’s control. Based on the evidence, the Tribunal was not persuaded that these circumstances were necessarily out of the ordinary nor ultimately beyond the control of the Australian immigration visa applicant. Accordingly, the Tribunal found that the Australian immigration visa applicant’s claims did not constitute exceptional circumstances beyond his control. Therefore, the Tribunal affirmed the decision to cancel the Australian immigration visa applicant’s Subclass 573 visa.
0903286
26 August 2009, Melbourne
Ms J Ellis, Member
CANCELLATION – STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 573 – HIGHER EDUCATION SECTOR – S.116(1)(b) – CONDITION 8202(3)(a) – EXCEPTIONAL CIRCUMSTANCES – A delegate of the Minister cancelled the Australian immigration visa Australian immigration visa applicant’s Subclass 573 student visa under s.116(1)(b) on the basis that he had not complied with condition 8202 because his education provider, Australian School of Tourism and Hotel Management (ASTHM), had certified him as not achieving satisfactory progress for the Advanced Diploma of Hospitality Management course in which he was enrolled. The course commenced in July 2008 and in November 2008 the Australian immigration visa applicant lodged a ‘Request for a Letter of Release’ because he claimed he wanted to enrol in another course which was more suitable for him and less stressful. The Australian immigration visa applicant claimed he first had difficulties when he was asked to cook and taste non-vegetarian dishes. He also claimed he cooked non-vegetarian food but refused to taste it because, as a Sikh, he felt it was not good to eat non-vegetarian food. He further claimed the exceptional circumstances beyond his control that led to the non-compliance was that he suffered stress caused by being forced to handle and cook meat, that he tried without success to change courses and that the chefs discriminated against Indian students. He claimed he did not realise the consequences of not achieving satisfactory academic progress and that he applied for a Letter of Release in November 2008 and that he had also applied on 2 earlier occasions as he realised this course was not for him. ASTHM refused his request and also his appeal against their decision.
Held: Decision under review affirmed.
The Tribunal initially considered whether the Australian immigration visa applicant had complied with condition 8202 of his visa. Evidence before the Tribunal indicated that the Australian immigration visa applicant’s assessments were not satisfactory in almost every subject between August and December 2008 and that the majority of subjects were not related to the handling or cooking of meat. The assessments also indicated that his teachers believed he needed to study more, that he did not sit for all his assessments and that he failed to attend remedial classes which he was required to do. The Tribunal found that the grounds for cancellation under s.116(1)(b) existed because ASTHM had certified that the Australian immigration visa applicant had not achieved satisfactory course progress and therefore, he had not complied with condition 8202(3)(a). As the Tribunal found that the Australian immigration visa applicant had not complied with condition 8202 of his visa, it was then required to consider whether the non-compliance was due to exceptional circumstances beyond the Australian immigration visa applicant’s control. The Tribunal accepted the Australian immigration visa applicant’s religious beliefs concerning the handling of meat but noted that he had stated he had not read the brochure he received at enrolment which expressly stated that students would be expected to select, prepare and cook meat. The Tribunal found that ASTHM did not have effective external appeal procedures in place and that this was beyond the Australian immigration visa applicant’s control, but this did not lead to the Australian immigration visa applicant’s non compliance with condition 8202(3)(a). The Tribunal did not accept that the Australian immigration visa applicant’s unsuccessful attempts to change courses in November 2008 led to his unsatisfactory course progress between July and December 2008. The Tribunal noted that the majority of his assessments did not involve handling meat and he had told the Tribunal he suffered from stress from July 2008 however he did not seek medical advice until November 2008. The Tribunal was not satisfied the Australian immigration visa applicant’s claimed circumstances constituted exceptional circumstances beyond his control which led to his non compliance with condition 8202(2)(a) and accordingly, his visa was subject to mandatory cancellation under subsection 116(3).
0805558
25 August 2009, Melbourne
Mr G Ledson, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 572 VOCATIONAL EDUCATION AND TRAINING SECTOR VISA – CL.572.223(2)(a)(i)(A) – CL.5A404 – ENGLISH LANGUAGE REQUIREMENTS – A delegate of the Minister refused to grant a Subclass 572 visa on the basis that he failed to provide an IELTS test that was taken less than 2 years before the date of the application with an Overall Band Score of at least 5.5. The Australian immigration visa applicant had previously been subject to two visa cancellations which had both been set aside, the first one because it was Uddin affected and the second because of Dai. The Australian immigration visa applicant claimed that he understood the reason why his visa was refused and that he claimed he had sat an IELTS test in 2003 with an overall score of 7, and in 2005 with an overall score of 7.5. Further, he claimed he attended the Department in June 2008 and was told that everything would be okay and that he was given every indication that proof of his English could be submitted after his visa application had been lodged. He claimed that following this, he immediately booked to sit an IELTS test with Macquarie University in July 2008. In order to do this, a friend drove him from Victoria to NSW to take the test. He attended on two other occasions as he was unable to sit all components of IELTS on the first day. He submitted his new IELTS results to the Department. He claimed that the delegate told him to come in and withdraw his student visa application, apply for a tourist visa, sit the IELTS exam and lodge his student visa application when he got those results. He reiterated that he was told to sit the exam and that the delegate told him all would be okay. He claimed he had never told any lies or submitted false documents concerning any visa related matters and that if he had to return to India without any qualifications it would be unlikely that he would be able to get employment. At hearing, his witness stated that the Australian immigration visa applicant had tried very hard to do the right thing in trying to resolve his visa status.
Held: Decision under review set aside.
The Tribunal found the Australian immigration visa applicant to be highly credible but noted that he had been caught up by evolving judicial consideration around the Student visa stream. The Tribunal considered that the central issues were whether the Australian immigration visa applicant had English language proficiency which enabled him to successfully engage in his nominated course, and whether evidence of his language proficiency could be submitted after the lodgement of the visa application. The Tribunal accepted the Australian immigration visa applicant’s belief that evidence of his English language proficiency would be accepted by the Department after he had lodged his visa application. The Tribunal also accepted evidence that his level of English language proficiency exceeded the requirement for the visa application. The Tribunal had regard to the Full Court decision in DIAC v Kamal [2009] FCAFC 98 which held that the language of Item 5A404(a)(ii) was directed to the recency or currency of a test result and that its intention was to ensure it satisfied the decision maker that it was a reliable indication of the proficiency of the Australian immigration visa applicant. Accordingly, the Tribunal was satisfied the Australian immigration visa applicant’s IELTS result from July 2008 was valid evidence that his English language proficiency was sufficiently recent and current as required in Item 5A404. Accordingly, the Tribunal found the Australian immigration visa Australian immigration visa applicant satisfied the requirements of cl.572.223(2)(a)(i)(A) of the Regulations.
0804191
24 August 2009, Sydney
Mr L Hardy, Member
STUDENT (TEMPORARY) (CLASS TU) VISA – SUBCLASS 572 – CL.572.211(3)(c) – FAILURE TO APPLY WITHIN TIME LIMIT – A delegate of the Minister refused to grant a Subclass 572 visa on the basis that the Australian immigration visa applicant did not satisfy the requirements of cl.572.211 of the Regulations, because he lodged his visa application more than 28 days after his previous substantive visa ceased to be in effect. The Australian immigration visa applicant’s last substantive visa was a student visa granted in February 2007 which included his partner as a secondary Australian immigration visa applicant. This visa expired in March 2008. The Australian immigration visa applicant claimed he was aware of the impending expiry of his visa and when he applied to renew it he made an incomplete application. He claimed his father signed all the remittances for his funds but he passed away in January 2008, the money for his tuition ran out, and new signing arrangements took some months to implement. He claimed that he could not secure ongoing tuition fees, he could not formally enrol in the next stage of his studies or obtain a Confirmation of Enrolment (CoE) from his education provider, and consequently, he could not complete his application for a further substantive visa. DIAC records indicated the Australian immigration visa applicant lodged his visa application on a date outside the 28 day period and he still had not raised funds for enrolment by then, so his late application was also incomplete. He claimed he was unable to provide DIAC with evidence of enrolment or an offer of study when he applied for renewal of his visa before the deadline or within the 28 days which followed. He claimed that by the time he had an offer to study, the next semester had already started and his education provider only offered a place in the following semester. He further claimed he did not have funds for a new CoE until he received the DIAC decision after May 2008, which suggested his visa application was out of time and incomplete. He claimed the lack of funds affected his ability to lodge a correct and completed application which prevented him obtaining a CoE until after the 28 period had already elapsed. He claimed he was no longer interested in studying in Australia but hoped his partner would not be prevented from returning to Australia as a student with him as her dependent.
Held: Decision under review affirmed.
The Tribunal found that, at the time of the visa application, the Australian immigration visa applicant’s last held substantive visa was a student visa which had since expired. The Tribunal then considered whether the Australian immigration visa applicant met the other requirements of cl.572.211(3), which required that he lodge a visa application within 28 days either of the date the last visa ceased to be in effect; or if the visa was cancelled, the date the Australian immigration visa applicant was notified of a decision that the visa cancellation was set aside or the cancellation was not revoked. The Tribunal found that the current visa application was made in May 2008 and the Australian immigration visa applicant’s last substantive visa ceased in March 2008. Accordingly, the Tribunal found that the application was not made within 28 days after the last substantive visa ceased to be effect. Therefore, the Australian immigration visa applicant did not meet cl.572.211(3)(c) of the Regulations.
0904579
5 August 2009, Sydney
Ms A Cranston, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 572 – VOCATIONAL EDUCATION AND TRAINING SECTOR – CANCELLATION – S137L – CONDITION 8202(3) – UNSATISFACTORY ATTENDENCE – The Australian immigration visa applicant’s Subclass 572 visa was automatically cancelled due to her failure to meet the requirements of Condition 8202 relating to satisfactory course attendance. A delegate of the Minister decided to refuse to revoke the automatic cancellation. The education provider had documented on a number of occasions throughout 2008 that the Australian immigration visa applicant had failed to attend 80% of the scheduled contact hours for the course as required under Condition 8202. It subsequently wrote to the Australian immigration visa applicant stating that it had certified that she was not achieving satisfactory course progress. The Australian immigration visa applicant failed to respond to the notification within 28 days of the date of the notice, and her visa was therefore automatically cancelled under s.137J. The Australian immigration visa applicant argued to the Department that she changed schools and moved to Brisbane and stopped attending on 20 August 2008 and although she claimed she advised the academy of this and requested a letter of release, the education provider did not give it to her. The Academy disputed this saying she did not withdraw from class or advise them she was changing schools until an email dated October 2008. The Australian immigration visa applicant subsequently wrote to the Minister seeking revocation of the automatic cancellation of her Subclass 572 visa. The Australian immigration visa applicant claimed that she had requested a letter of release from her course provider, which was not given, as she was moving interstate with her partner, and had shortly after enrolled in another course. The Australian immigration visa applicant also claimed that she had been involved in a car accident earlier that year which had affected her attendance, and she submitted three separate medical certificates to the Tribunal in support of this claim.
Held: Decision under review set aside.
The Tribunal accepted the information from the education provider in relation to the Australian immigration visa applicant’s course attendance and found that the Australian immigration visa applicant had breached condition 8202(3). The Tribunal then considered whether the breach was due to exceptional circumstances beyond the Australian immigration visa applicant’s control as set out in s.137L(1)(b). The Tribunal found that it was unable to determine whether the Australian immigration visa applicant verbally notified the education provider that she was transferring to another course; however, it decided to give her the benefit of the doubt. It found that as she was enrolled in a new college from shortly after she claimed that she had requested the letter of release. Accordingly, the Tribunal was satisfied that the Australian immigration visa applicant’s breach of condition 8202 was due to exceptional circumstances beyond her control, that is, her attendance at another college. Therefore, the Tribunal found that the cancellation should be revoked.
October 2009
0901669
19 October 2009, Sydney
Ms L Nicholls, Member
VOCATIONAL EDUCATION AND TRAINING SECTOR VISA – SUBCLASS 572 – CL. 572.223(2)(a)(i)(A) – ENGLISH PROFICIENCY – A delegate of the Minister refused the application for a further student visa because she found that the Australian immigration visa applicant had not met the English proficiency requirements of cl.572.223(2)(a)(i)(A). The delegate found that the Australian immigration visa applicant had provided an academic transcript of his results in an Advanced Diploma in E-business. However, as that document and the accompanying letter from the education provider did not show that he had completed at least 51% of the course, the delegate was not satisfied that he met the requirements of Schedule 5A407 (d)(ii) in that he had not provided evidence that he had successfully completed a substantial part of the course. The Tribunal noted that the application for review was lodged one month after the date which appeared on the Department’s decision letter in relation to the final date an application could be made, however, it found that the Australian immigration visa applicant had been incorrectly notified of their decision by the Department and that the application for review was valid. The Australian immigration visa applicant claimed that he had completed High School in Egypt along with two years of University, and on arrival in Australia he had successfully undertaken a twelve week English language course. He stated that he had not sat for an IELTS test. He claimed that he subsequently enrolled in two Diploma courses which he did not complete, before enrolling in the Advanced Diploma of E-business at the Australian College of Education and Training. The Australian immigration visa applicant provided certification to the Tribunal that he had successfully completed the first year of this two year course which had been conducted in English.
Held: Decision under review set aside.
The Tribunal found that the Australian immigration visa applicant was the holder of a student visa and at the date of decision had successfully completed 12 units of a Certificate IV course (Diploma of E-Business) conducted in English by the Australian College of Education and Training, and that subject to the Gazette notice in force at the time of application, the Australian immigration visa applicant was subject to consideration under Assessment Level 3. The Tribunal noted the judgement in MIAC v Kamal [2009] which stated that the Court found the phrase “taken less than 2 years before the date of the application” meant an IELTS test taken no earlier than two years before the date of the application. Applying the reasoning in that decision to the phrase “less than 2 years before the date of the application” used in Schedule 5A407 (d)(iii), the Tribunal found that the Australian immigration visa applicant met the requirements of that subclause in that he had completed 12 units out of 18 possible units of the course, whilst needing only 8 units to qualify. Accordingly, the Tribunal found that the Australian immigration visa applicant had less than 2 years before the date of application successfully completed a substantial part of a Certificate IV course that was conducted in English. On that basis, the Tribunal found that the Australian immigration visa applicant satisfied the requirements of cl.572.223(2)(a)(i)(A) in relation to English language proficiency, and that the matter should be remitted to the Department for further consideration.
November 2009
0905282
27 November 2009, Sydney
Mr L Hardy, Member
VOCATIONAL EDUCATION AND TRAINING SECTOR VISA (TEMPORARY) (CLASS TU)– SUBCLASS 572 – CONDITION 8202 UNSATISFACTORY ATTENDENCE – The Australian immigration visa applicant’s Subclass 572 visa was cancelled due to his failure to meet the requirements of Condition 8202 in relation to satisfactory course attendance. The Australian immigration visa applicant claimed that his father in Nepal was hospitalised with asthma and that he made many attempts to go to college during this two week period but he had turned back half-way and headed home. He later changed this evidence to say that he had attended and had left early due to his inability to concentrate. Although the Australian immigration visa applicant acknowledged that his attendance for Term 1, 2009 had fallen below 80%, he claimed at hearing that his education provider had excessively miscalculated his absences. He claimed he was only absent for two weeks, and that his school marked him absent for a period of two to three weeks. The Australian immigration visa applicant claimed that he went to see a student counsellor in the weeks following his absences prior to the certification of the breach, although he did not provide any evidence to that effect. The Australian immigration visa applicant claimed that because his study in Australia was financed by his father, he became concerned about his ability to continue studying when his father became sick. The Australian immigration visa applicant claimed that because his visa had been cancelled, he could not obtain evidence such as student counselling or doctor’s reports. He claimed that during this period he continued to hold a part-time job. The Australian immigration visa applicant submitted a letter from a hospital in Nepal stating that his father was recovering well from a heart bypass operation, and another letter from the Australian immigration visa applicant’s mother stating that his father was undergoing treatment and that his condition was worsening every day.
Held: Decision under review affirmed.
The Tribunal was satisfied that the Australian immigration visa applicant had not complied with Condition 8202 and the ground for cancellation under s.116(1)(b) therefore existed. The Tribunal found that the documentary evidence did not support the claim that the Australian immigration visa applicant’s father was suffering from asthma, let alone a bout of asthma that was so serious as to be exceptional. It found that the documentary evidence only supported the claim that the Australian immigration visa applicant’s father had a heart condition, which had already been treated by way of a bypass operation and that the hospital’s letter was written in response to a request for supporting evidence of a kind that had been identified as lacking when the Australian immigration visa applicant’s visa was cancelled. Therefore, the Tribunal found that this letter was unreliable. It then considered his mother’s letter and found that it was also created after the Australian immigration visa applicant’s visa had been cancelled and that it therefore could not be relied upon as a truthful description of what was happening to the Australian immigration visa applicant’s family at the relevant time. It found that, as neither letter was presented until the review was underway, taken together with other concerns, the Tribunal found that both of the letters were not genuine. The Tribunal also found it incongruous that, considering the Australian immigration visa applicant’s claims about numerous telephone calls with his mother, he claimed he did not know the details of his father’s operation. The Tribunal found that the Australian immigration visa applicant’s evidence as to when he first alerted the school of the problems he faced with his attendance was inconsistent and unsupported. It noted his evidence that he attempted, on various occasions, to go to school only to turn around halfway and go home, and that later he said that he did go to school and had simply returned home halfway through the day. The Tribunal noted that his written statement had said that he missed two to three weeks of school, and therefore found that the Australian immigration visa applicant’s evidence was unreliable. The Tribunal found that the Australian immigration visa applicant’s evidence that he continued to work through the period of his father’s illness undermined his claims of being affected at the time by exceptional circumstances beyond his control. On the evidence before it, the Tribunal found that all of the Australian immigration visa applicant’s claims about exceptional circumstances beyond his control were unreliable. Accordingly, the Tribunal found that the Australian immigration visa applicant had not complied with Condition 8202 and that in accordance with s.116(3) such circumstances were prescribed circumstances in which the visa must be cancelled. Accordingly, the Tribunal affirmed the decision to cancel the Australian immigration visa applicant’s Subclass 572 Student visa.
0907394
5 November, 2009, Melbourne
Ms L Spieler, Member
STUDENT (TEMPORARY) (CLASS TU) – SUBCLASS 572 – S.116(1)(b) – CANCELLATION – CONDITION 8202(3)(b) – EXCEPTIONAL CIRCUMSTANCES – A delegate of the Minister cancelled the Australian immigration visa applicant’s Subclass 572 visa under s.116(1)(b) for breaching condition 8202 as the Australian immigration visa applicant was unable to demonstrate that his failure to achieve satisfactory attendance was due to exceptional circumstances. The Australian immigration visa applicant claimed he was enrolled at Perth Institute Western Australia (PIWA) and in June 2009 PIWA formally notified the Australian immigration visa applicant in writing of its intention to cancel the course which the Australian immigration visa applicant was enrolled in. The Australian immigration visa applicant claimed he applied for a Student Course Variation in July 2009 to formally withdraw from this course and he stopped attending classes soon after. He enrolled in a course at a college closer to his home. He claimed he attempted to see a PIWA student advisor in early July to withdraw and cancel his studies, but he was unable to do so until late July. Information on file indicated that PIWA accepted the application to cancel the Australian immigration visa applicant’s studies but this was not processed within 20 working days as is stated on the application form. On 19 August 2009 the Australian immigration visa applicant was issued with a s.20 notice. According to PIWA the Australian immigration visa applicant was an accepted student until 24 August 2009 although the Australian immigration visa applicant claimed he had already commenced studying at a new college.
Held: Decision under review set aside.
The Tribunal noted that the conditions contained on the application form stated that the application should have been processed within 20 working days, but when this was not done, PIWA issued with a warning letter four weeks after the Australian immigration visa applicant had stopped attending classes. The Tribunal found that PIWA took over two months to report the Australian immigration visa applicant and there was no information from PIWA to suggest that it did not intend to process the Australian immigration visa applicant’s request to cancel his studies. The Tribunal found that the warning letter was inaccurate and to some extent, misleading. The Tribunal also had concerns about the processes which led to the Australian immigration visa applicant being reported. The Tribunal found that the Australian immigration visa applicant had lodged an application to cancel his studies with PIWA in July 2009 and that he had proceeded on the understanding he could commence studies at his new school. Accordingly, the Tribunal was satisfied the Australian immigration visa applicant’s non compliance with condition 8202 was due to exceptional circumstances beyond his control. As the Tribunal decided a ground for cancellation existed, it then considered whether the power to cancel the visa under s.116(1) should be exercised, having regard to all the circumstances. Based on the evidence, the Tribunal found the Australian immigration visa applicant’s breach of condition 8202 was due to exceptional circumstances beyond his control. Accordingly, the Tribunal set aside the decision to cancel the Australian immigration visa applicant’s Subclass 572 visa.
December 2009
0903434
22 December 2009, Melbourne
Ms M Cameron, Member
STUDENT GUARDIAN – SUBCLASS 580 – S.116(1)(B) – CANCELLATION – NO WORK – The Australian immigration visa applicant’s Subclass 580 visa was cancelled as she had been observed by a Departmental officer to be working in her shop on more than one occasion between December 2008 and February 2009, and had admitted on six occasions during her Departmental interview that she had worked despite knowing that she did not have permission. She had also been served previously with an Illegal Worker Warning Notice following her being discovered working in April 2008. The Australian immigration visa applicant claimed that she had not admitted to working at the interview and that she had great difficulty expressing herself in English. The Australian immigration visa applicant acknowledged that she was present in her shop when she was seen there by Departmental officers, but denied that she served customers or otherwise worked in the shop. The Australian immigration visa applicant claimed that when she was told that she had been seen serving two customers, she had in fact been giving a gift to some parents who had assisted her sons during the year with transport to soccer practice. She claimed that she had been attempting to sell her shop, and because she had spread the word through the Korean community that the business was for sale, she had felt it necessary to be in the shop to speak with potential buyers. The Australian immigration visa applicant claimed that she employed a sales assistant who worked in the shop between its opening and 3.40pm daily, from which time the Australian immigration visa applicant’s eldest son worked until closing time. She claimed that she was often in the shop whilst the sales assistant handled sales and store activity. The Tribunal received oral evidence from the Australian immigration visa applicant’s employee, who claimed that the Australian immigration visa applicant had never undertaken any tasks in the shop such as serving customers, stocking shelves or anything else that could be considered to be work, and that the Departmental officers were mistaken in their assumptions that the review Australian immigration visa applicant had been seen working.
Held: Decision under review set aside.
The Tribunal noted that a critical issue in this case was the nature of the Australian immigration visa applicant’s role in the business and whether her activities constituted ‘work’ within the meaning of r.1.03. It found that, in this regard, it was necessary to consider what the Australian immigration visa applicant’s role in the business was, and whether she had undertaken any ‘work’ having regard to the surrounding circumstances, including her submissions that she was the owner of the business but had not ‘worked’ in it. The Tribunal gave significant weight to the evidence of the witness, who stated that the Australian immigration visa applicant did not at any time work in her shop. It noted that the witness had provided detailed and consistent evidence that she herself undertook all of the necessary tasks in running the business, and that when she finished work in the late afternoon she was replaced by the Australian immigration visa applicant’s eldest son. The Tribunal found that the witness provided detailed oral evidence at the Tribunal hearing which was consistent with her written submissions and with the evidence of the Australian immigration visa applicant, and found the witness to be both forthright and credible. The Tribunal noted that it did not doubt the Departmental compliance officers considered that they saw the Australian immigration visa applicant ‘working’ in her shop, however, the Tribunal was unable to place greater weight on the observations of the compliance officers than it did upon the accounts of the Australian immigration visa applicant and the witness in their submissions and at the Tribunal hearing. The Tribunal found that while the involvement in the managerial oversight of the shop might be found to be activity which would “normally” attract remuneration, it could not be satisfied that this was the case in the Australian immigration visa applicant’s situation given her motivations for her presence and interest in the operations of her shop. The Tribunal accepted the Australian immigration visa applicant’s evidence that she knew other shop owners in the vicinity of her shop with whom she interacted socially and that she often spent time sitting outside or visiting other shopkeepers. The Tribunal accepted that the Australian immigration visa Australian immigration visa applicant did not engage in work, in breach of condition 8101 of her visa, and therefore the grounds for cancellation of her visa did not arise.
Other Related Australian Imnmigration 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
