CATCHWORDS: Cancellation of visa - Subclass 560 - student cancellation - failure to comply with condition 8202

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a subclass 560 Student (Temporary) (Class TU) visa.

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (`the delegate'). Mr Nobuyasu SHIBATA (`the visa applicant'), a national of Japan, born on 1 November 1975 (D1, f.11), was last granted a Student (Temporary), Class TU, Subclass 560 visa on 11 July 2000 (T1, f.17-22). The delegate's decision to cancel the visa was made on 22 November 2000 (D1, f.38-40).

2. The visa applicant lodged an application for review to the Tribunal on 24 November 2000 (T1, f.4-10).

3. The review applicant has lodged a valid application for the review of a decision that can be reviewed by the Tribunal. The review applicant is able to seek review of this decision by the Tribunal.

4. The Migration Act 1958 (the Act) and the various regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural Affairs (DIMA). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

5. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

6. The criteria and policy immediately relevant to this review are:

Part 560 of Schedule 2 to the Regulations

Procedures Advice Manual 3: Generic Guidelines G - Student visas

Procedures Advice Manual 3: Schedule 2 - Student - Visa 560

Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436

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

Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575

7. The Tribunal generally has regard to the regulations as the regulations stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

9. The visa applicant first arrived in Australia on a Subclass 560 Student (Temporary) (Class TU) visa on 4 July 1999, with a cease date of 2 August 2000. On 11 July 2000, the visa applicant was granted the most recent Subclass 560 student visa, with a cease date of 22 November 2000 (T1, f.17-22).

10. The applicant's last subclass 560 student visa was granted on the basis that the visa applicant was studying at TAFE International, Western Australia for a Certificate III in Software Applications, Hardware & Network Fundamentals, with a start date of 17 July 2000, and an end date of 17 December 2000 (D1, f.3). The applicant was then enrolled in a Certificate IV in Information Systems with TAFE International, Western Australia, with a start date of 5 February 2001, and an end date of 16 December 2001 (D1,f.4).

11. There is a file note dated 9 October 2000, that states the applicant was questioned by an officer of the Department of Immigration and Multicultural Affairs where the applicant stated that his attendance at TAFE had been approximately 30% (D1, f.12).

12. On 9 October 2000, a non-compliance form was forwarded to the Department stating that the visa applicant's enrolment was `terminated due to poor attendance' from the Certificate III Software Applications (Hardware and Network) (D1, f.13-14).

13. On 26 October 2000, a Notice of Intention to Cancel was forwarded to the applicant, by registered mail, in which it was stated, "It has come to the Department's attention that there may be ground/s for cancellation of your visa under section 116(1)(b) of the Migration Act 1958 as you have breached condition 8202 of your student visa..." (D1, f.15-16).

14. A file note states that the applicant attended the Department of Immigration and Multicultural Affairs on 13 November 2000, to discuss his situation with an officer. The file note states, "I advised that any breach of condition 8202 was a mandatory cancellation and unless there were exceptional reasons process would go ahead" (D1, f.17). Condition 8202 as described in the regulations, and as stated at the time of application, is as follows:

(i) in the case of an occupational trainee -- satisfy the requirements of the course of occupational training approved by the Minister under subclause 442.222 (1); or

(ii) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student -- be enrolled in a full-time course of study; or

(iii) in any other case -- be enrolled in a registered course; and

(b) must (if the holder is not an occupational trainee):

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

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

(c) must (if the holder is not an occupational trainee) comply with any requirement of the education provider in relation to payment of fees for the course.

15. A class attendance role for TAFE International, Western Australia for Semester 2, 2000 is on file (D1, f.18-37).

16. A record of decision to cancel a visa, dated 22 November 2000, is on file (D1, f.38-40). This record states that the reasons for cancellation that exist are, "non compliance form from TAFE stating that Mr Shibata's enrolment terminated" (D1, f.40). The delegate decided that the applicant "breached 8202(a)(iii) because he is not enrolled in a registered course of study" (D1, f.39).

17. It was noted that there is a file note on the departmental file stating, "When I first spoke to Mr Shibata on the 13 November 2000, I considered this case to be a mandatory cancellation for unsatisfactory attendance but due to Federal Court decision in the Nong case, I do not intend to use attendance as grounds to cancel visa, even though Mr Shibata's attendance is very poor" (D1, f.43).

18. At review the review applicant states, "the course I chose (Computer Course) was not an interactive one, especially with the teachers who for the most part were wandering in and out of the classroom....I couldn't ask questions when I didn't understand, and I was basically left on my own. In this sort of learning environment it is very difficult to sustain any sort of enthusiasm level, hence the attendance percentage drops and yes I understand now, the visa laws regarding 80% attendance" (D1, f.4-5).

19. On 7 and 13 March 2001, a Tribunal officer requested further information from TAFE International Western Australia regarding the student's attendance record (T1, f.25-26).

20. On 19 March 2001, a facsimile was received regarding the applicant's attendance, which attaches a copy of a non-compliance form, dated 9 October 2000 (T1, f.27-28), in reply to the above request (D1, f.13). This facsimile states, `..enrolment with TAFE International was terminated on the 9 October 2000 due to poor attendance...Mr Shibata was interviewed on the 6/10/00 by the course coordinator at Central College of TAFE and then at TAFE International by the student counsellor regarding attendance for Term 3 Semester 2, 2000 which was 30%...reasons for poor attendance were that he was working. He produced a business card. He was questioned as to how many hours he was working and his response was that it depended on customers. When asked if he had a work permit, he said no. He was advised of the serious implications of his actions. An appointment was made for him with DIMA.' (T1, f.28). There is evidence on file (T1, f.20) that the applicant, at the time of his last subclass 560 Student (Temporary) visa of 11 July 2000, had condition 8101 imposed on his visa as follows:

8101. The holder must not engage in work in Australia.

21. At the time the visa application was lodged, Class TU contained the following subclasses: Subclass 560 (Student), Subclass 562 (Iranian Postgraduate Student) and Subclass 563 (Iranian Postgraduate Student Dependent). The only subclass in respect of which any claims have been advanced is Subclass 560. There is no evidence to suggest that the visa applicant meets key criteria for any of the other subclasses.

22. One of the criterion to be satisfied at the time of application for the grant of a Subclass 560 visa is that `the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject' (clause 560.213 of Schedule 2 to the Regulations). At the time of decision, the visa applicant must continue to satisfy the criterion in clause 560.213 (clause 560.227 of Schedule 2 to the Regulations).

23. The visa applicant last held a Subclass 560 visa, which included the following conditions:

(i) in the case of an occupational trainee -- satisfy the requirements of the course of occupational training approved by the Minister under subclause 442.222 (1); or

(ii) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student -- be enrolled in a full-time course of study; or

(iii) in any other case -- be enrolled in a registered course; and

(b) must (if the holder is not an occupational trainee):

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

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

(c) must (if the holder is not an occupational trainee) comply with any requirement of the education provider in relation to payment of fees for the course.

24. The visa held by the visa applicant was also subject to other conditions. There is no evidence that the visa applicant has not complied substantially with these visa conditions.

25. Cancellation powers given to the delegate under section 116 state:

Section 116. Power to Cancel

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(a) any circumstances which permitted the grant of the visa no longer exist; or

(b) its holder has not complied with a condition of the visa; or

(c) another person required to comply with a condition of the visa has not complied with that condition; or

(d) if its holder has not entered Australia or has so entered but has not been immigration cleared - it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder has so entered and been immigration cleared; or

(e) the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or

(f) the visa should not have been granted because the application for it, or its grant was in contravention of this Act or of another law of the Commonwealth; or

(g) a prescribed ground for cancelling a visa applies to the holder

(2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.

(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

26. The Tribunal must have regard to visa conditions that were applied when the visa was granted (Pradhan).

27. In Baidakova, Katz J referred to matters to be taken into account when deciding whether an applicant has substantially complied with a visa condition. Katz J said:

...the Tribunal should consider the relevant circumstances of the case. Without being exhaustive, these include:

. the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;

. whether or not the applicant deliberately flouted the condition; and

. if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.

28. The Federal Court in Nong has recently provided a strict interpretation of the requirement set out in par (b) of 8202 that the visa holder "attend at least 80% of the classes and tutorials scheduled for the course".

29. In Nong the Court held that par (b) contemplates an examination of the student's attendance in the registered course in which he or she is enrolled only when that course has concluded (para 38).

30. The Court, however, was presented with an alternative interpretation of par (b) condition 8202 which would provide for the breach of condition 8202 to be found to have occurred prior to the conclusion of the course. The argument was:

"...that condition 8202(b) can be breached when a point is reached at which it is no longer possible for the student to attend `at least 80% of the classes and tutorials scheduled for the course...'"

31. The Court declined to express a concluded view on this alternative construction as it had no impact on the outcome in Nong.

32. In summation, the visa applicant enrolled with TAFE International Western Australia in both a Certificate III in Software Applications, Hardware & Network Fundamentals and a Certificate IV in Information Systems. However, on 9 October 2000 he was excluded from TAFE for poor attendance (D1, f.13-14) and (T1, f.27-28) in his Certificate III course. There is no evidence on file that Mr Shibata commenced his Certificate IV course in Information Systems. In fact, he would not have been able to commence this course if he had not successfully completed his Certificate III course. As evidenced above, this was not possible as his enrolment was cancelled on 9 October 2000 after 30% attendance. The applicant could therefore not meet condition 8202. He has also not enrolled in further study.

33. A hearing was held on 6 June 2001, and oral evidence was given by Mr Nobuyasu Shibata, the visa applicant, and Mr Frank Patornitti, a friend of the visa applicant.

34. The visa applicant was requested to provide reasons for his poor attendance record and, after some brief consideration, stated, "I have no reason". When it was put to him that he had breached the conditions of his visa, the visa applicant agreed that he had breached his visa conditions.

35. When the visa applicant was asked why his attendance record was as low as 30%, he explained that he found it difficult to understand the lecturers and had hoped to catch up. He was asked how he could hope to catch up without attending lectures. The visa applicant was unable to offer any suggestions.

36. The Tribunal asked the visa applicant why, contrary to his visa conditions, he had engaged in employment. The visa applicant stated that it was not "real employment", but that he had helped his father out who had asked him to do some work for him by representing his father's business to students, in lieu of the extra money that he had requested. Hence, he had not really been in paid employment but rather had his allowance increased by his father. The Tribunal asked the visa applicant whether his father had been aware that by `employing' his son he was breaching his son's visa condition. The visa applicant advised that his father was unaware of this breach of the visa condition.

37. Upon further questioning the visa applicant confirmed that he was not attending any classes this year. However, he thanked the Tribunal for having had the opportunity to substantially improve his English during the last 6 months.

38. Mr. Patornitti, confirmed that the visa applicant had substantially improved his English language skills. However, he agreed with the Tribunal, that these were not the subjects for which he had enrolled at TAFE but were only a by-product, albeit beneficial, to the visa applicant's studies.

(i) in the case of an occupational trainee -- satisfy the requirements of the course of occupational training approved by the Minister under subclause 442.222 (1); or

(ii) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student -- be enrolled in a full-time course of study; or

(iii) in any other case -- be enrolled in a registered course; and

(b) must (if the holder is not an occupational trainee):

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

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

(c) must (if the holder is not an occupational trainee) comply with any requirement of the education provider in relation to payment of fees for the course.

40. The visa held by the visa applicant was also subject to non-working conditions. There is evidence before the Tribunal that the visa applicant has also not substantially complied with these visa conditions, which preclude the visa applicant from working.

41. In order to succeed in an application for a review under the Regulations, it is necessary for the visa applicant to satisfy all the criteria for the grant of a visa.

42. One of the criterion to be satisfied at the time of application for the grant of a Subclass 560 visa is that, `the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject' (clause 560.213 of Schedule 2 to the Regulations). At the time of decision, the visa applicant must continue to satisfy the criterion in clause 560.213 (clause 560.227 of Schedule 2 to the Regulations).

43. The Tribunal notes the evidence provided by the visa applicant. However, none of this evidence satisfies the criterion in clause 560.213 (clause 560.227 of Schedule 2 to the Regulations).

44. Therefore the Tribunal makes the following finding: That the visa applicant is not entitled to the grant of a subclass 560 Student (Temporary) (Class TU) visa because he has failed to meet Regulation 8202(a)(iii) and condition 8101, as noted above.

45. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a subclass 560 Student (Temporary) (Class TU) visa.