[2000] MRTA 1003

DECISION: The Tribunal sets aside the decision under review to cancel the Student (Temporary)(Class TU) visa, subclass 560 granted to the Visa Applicant.

CATCHWORDS: Cancellation - conditions 8202 and 8206 - affiliates of same institution - exceptional circumstances

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs, details of which are as follows:

Visa Class/Subclass: Student (Temporary)(Class TU) visa, subclass 560

2. The application for review was validly made under section 338 of the Migration Act 1958 (the Act), which goes to decisions reviewable by the Tribunal, and it complies with section 347 (which goes to the standing of the Review Applicant):

3. The Act (as amended), and the Migration Regulations 1994 (the Regulations) provide for different classes of visas. Government policy guidelines are an aid to the interpretation and application of the prescribed criteria for these visas. Most policy guidelines are set out in the Procedures Advice Manual (PAM 3) issued by the Department of Immigration and Multicultural Affairs (the Department).

4. In reaching its decision the Tribunal is bound by the Act and Regulations and applies relevant government policy which is lawful. General policy guidelines are applied by the Tribunal unless there are cogent reasons to the contrary. General policy directions issued by the Minister pursuant to section 499 of the Act are applied wherever they are relevant (see generally Re Drake and Minister for Immigration and Ethnic Affairs (No.2) [1979] AATA 179; (1979) 2 ALD 634 and Ali v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 453; (1992) 38 FCR 144).

5. The relevant legislation in force at the time of the cancellation of the visa and the relevant policy and case law are set out below:

Section 116 of the Act

Regulation 2.43(2) of the Regulations

Part 560 of Schedule 2 of the Regulations

Clauses 8202 and 8206 of Schedule 8 of the Regulations

Baidakova v Minister for Immigration & Multicultural Affairs (Federal Court, 12 November 1998, unreported)

Pradhan v Minister for Immigration & Multicultural Affairs [1999] FCA 1240

6. The Tribunal had before it the material contained in the Department's file and material from its own file. Under section 360(2)(a) of the Act the Tribunal considered that it should decide the review in the Visa Applicant's favour on the basis of the material before it, so there was no need for the Visa Applicant to be invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

7. The Visa Applicant is a male of Bangladesh nationality. He entered Australia on 3 July 1999 on a Student (Temporary)(Class TU) visa, subclass 560 which was issued on 22 June 1999 and was due to expire on 30 May 2000. He was granted a further subclass 560 which was issued on 9 August 1999 and was due to expire on 30 July 2000. He enrolled in a course at Melbourne Institute of Business and Technology (MIBT), and information from MIBT dated 18 November 1999 indicates that his enrolment ceased on 10 November 1999. He attended Deakin University English Language Institute (Deakin) from 17 January 2000 until 11 February 2000.

8. The Visa Applicant was interviewed by the Department on 7 March 2000. He was unable to give a reason as to why the visa should not be cancelled on the information provided by MIBT. The Visa Applicant's visa was cancelled under section 116(1)(b) of the Act on the grounds that he failed to satisfy visa condition 8202 (attendance at classes less than 80%), and condition 8206 (changing education provider within the first 12 months). He applied for a Bridging E (Class WE) visa which was granted on 9 March 2000. On 14 March 2000 the Visa Applicant lodged an application with the Tribunal for review of the decision to cancel the visa.

9. In a submission to the Tribunal the Visa Applicant submitted a letter dated 9 March 2000 from the Acting Director of Studies, Deakin, who stated:

I am writing to clarify that Deakin University English Language Institute did not request that Sadequr Rahman's student visa be cancelled. Melbourne Institute of Business and Technology, with which Deakin University is affiliated, reported that Sadequr was no longer studying with them in late 1999. Sadequr came to see me at this time and discussed enrolling for English for Academic Purposes, based on a recommendation from MBIT. Sadequr enrolled and attended four weeks of the first EAP course in 2000 which commenced on 10/1/00 and finished on 11/2/00. As Sadequr now wishes to return to MBIT and complete his Diploma course I recommend that he be issued with a new student visa.

10. The letter from Deakin stated that MBIT is an affiliate of Deakin, which advised the Visa Applicant to enrol at the Deakin and that this was on the recommendation of MIBT.

Deakin also submitted a certificate that the course attendance by the Visa Applicant for the period of the studies was 92%.

11. In a letter dated 9 March 2000 The Registrar of MBIT stated that the Visa Applicant is returning from leave of absence from MBIT from semester 3, 1999 to continue his studies in semester 1, 2000 which began on 6 March 2000.

12. Section 116 of the Act provides that the Minister may cancel a visa if he or she is satisfied that its holder has not complied with a condition of the visa (subsection 116(1)(b)). In this case a condition of the subclass 560 granted to the Visa Applicant on 9 August 1999 was:

(b) attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider or otherwise; and

(c) if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory; and

(d) comply with any requirement of the education provider in relation to payment of fees for the course.

13. Section 116(3) of the Act provides for circumstances in which a visa must be cancelled and Regulation 2.43(2) sets out those circumstances. Regulation 2.43(2)(b), which came into operation on 1 December 1998 (Statutory Rule 305 of 1998) states that in the case of a Student (Temporary) (Class TU) visa - that the Minister is satisfied that the visa holder has not complied with condition 8202. In Pradhan v Minister for Immigration & Multicultural Affairs [1999] FCA 1240 Gyles J held that Regulation 2.43(2)(b) and the above version of condition 8202 apply only to a Student (Temporary)(Class TU) visa, subclass 560 granted on or after 1 December 1998. Accordingly, as the visa granted to the Visa Applicant with condition 8202 was issued after 1 December 1998, the discretion to cancel set out in section 116(1)(b) does not apply if the grounds for cancellation are made out.

14. In Baidakova v Minister for Immigration & Multicultural Affairs (Federal Court, 12 November 1998, unreported) Katz J referred to the matters to be taken into account when deciding whether an applicant has complied substantially with a visa condition. These include the nature and significance of the breach, whether or not the applicant deliberately flouted the condition and, if the applicant failed to appreciate the breach of condition, what if anything had contributed to that failure, including whether the Department had misled the applicant.

15. After taking into account the written material, including the documents provided by Deakin University and MBIT that the Visa Applicant's attendance was 92% and that he is continuing his studies, the Tribunal finds that at the time of cancellation of the visa on 7 March 2000 the Visa Applicant was enrolled in a registered course (paragraph (a) of condition 8202), he attended at least 80% of the classes and tutorials scheduled for the course as evidenced by records of attendance of the education provider (paragraph (b)), paragraph (c) is not applicable, and the Visa Applicant has complied with any requirement of the education provider in relation to payment of fees for the course (paragraph (d)). Consequently the Tribunal finds that the Visa Applicant has complied with condition 8202 of his visa.

16. Condition 8206 of the visa granted to the Visa Applicant on 9 August 1999 was:

8206. The holder must not change his or her enrolment from enrolment in a course offered by an education provider (the original course) to enrolment in a course offered by another education provider:

(a) if the original course is for 12 moths or more - within the first 12 months of that course;

On the basis of the documents before it, the Tribunal finds that the two institutions attended by the Visa Applicant are affiliates, so that he did not change education provider. Even if this were not the case, policy guidelines of the Department provide that a change in enrolment is permitted in exceptional circumstances. As the Visa Applicant changed his course of study at the suggestion of both Deakin and MIBT, the Tribunal finds that exceptional circumstances exist in this instance.

Consequently the Tribunal finds that the Visa Applicant has complied with condition 8206 of his visa.

17. As the Visa Applicant has complied with the conditions of his visa, the grounds do not exist for the cancellation of the visa.

18. The Tribunal sets aside the decision under review to cancel the Student (Temporary)(Class TU) visa, subclass 560 granted to the Visa Applicant.

I certify that this and the preceding pages are a true copy of the Statement of Decision and Reasons.