1507114 (Migration)

[2015] AATA 3777

1507114 (Migration) [2015] AATA 3777 (27 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Edgar Raul Arce Barrios

CASE NUMBER:  1507114

DIBP REFERENCE(S):  BCC2014/1930940

SENIOR MEMBER:  Antoinette Younes

DATE:27 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 27 November 2015 at 3:38pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 May 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant is not, or is likely not to be, a genuine student. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 17 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s.116(1)(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

6. In the decision record provided by the applicant in support of the application for review, it is noted that:

   a.The applicant was granted a student visa subclass 572 on 30 September 2013.  The Provider Registration and International Student Management System (PRISMS) indicates that the applicant has not undertaken any studies since 25 July 2014.

   b.The applicant’s enrolment for the course of certificate IV in business at Cambridge Business College was cancelled due to unsatisfactory attendance on 25 July 2014. The applicant’s attendance was recorded by the College to be less than 50% for the entire course.

7. On 14 April 2015, the Department sent to the applicant a notice of intention to consider cancellation of his visa. On 21 April 2015 and 1 May 2015, the applicant responded to the Department. In his responses, the applicant accepted that there was non-compliance and noted that:

   a.When he returned to study at Cambridge in July 2014, the College advised him not to return until the Department had told him. He told them that he wanted to study but they insisted that he should not return until advised by the Department.  He was confused and did not know what to do, so he decided to do a course in bricklaying which he enjoys.

   b.During the time of absence from the College, he has been studying certificate III in bricklaying which he completed in December 2014 and he has also been studying English preparing for the IELTS exam on 18 April 2015.

   c.As he did not hear from the Department, he continued to study where he was accepted. He also had purchased an airline ticket in preparation to leave Australia at the end of May 2015, prior to the expiry of his visa.  He intends to open a construction company and when he returns home, he could make this happen.

   d.He has made mistakes in relation to his student visa because he did not consult an adviser and he did not understand the visa conditions. He thought that the courses he was studying were good enough to ensure compliance with the visa conditions.

   e.He would like to be given another chance to complete his studies as this would be highly beneficial for him on his return to Peru. He decided to come to Australia to study and left his family behind so that he could improve his skills in a demanding global market.

8. To the Department and to the Tribunal, the applicant provided copies of the IELTS exam confirmation, certificate III in bricklaying, money transfers, and airline ticket for May 2015.

   Does the ground for cancellation exist?

9. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

10. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

11. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

12. In the course of the hearing, the Tribunal discussed with the applicant the information that led to the visa cancellation, as outlined at paragraph 6 of this decision. The applicant agreed that the information is correct. He said he was feeling sad because in May to July (2014), his son in Peru was sick.  He explained that his 12 year old son lives with his mother in Peru.  The Tribunal asked the applicant if he has any evidence that his son was sick and the applicant stated he does not.

13. The applicant said he tried to speak to the College but they told him to discuss it with immigration. He said that he came to Australia to study and attends Hill Song church to obtain support for the IELTS. The Tribunal asked the applicant how he was supporting himself in Australia and he said that his family sends him money from Peru as evidenced by the copies of the money transfers he provided.

14. The Tribunal has carefully considered the applicant’s explanations.  Essentially, the applicant explained that the non-compliance was due to him being worried about his son’s illness. Although the applicant has not provided any evidence to support this, the Tribunal accepts as plausible that the applicant’s son was ill but in consideration of the evidence as a whole, the Tribunal is not satisfied that his son’s illness explains the non-compliance. Whilst the Tribunal does not wish to sound or appear to be harsh, the Tribunal finds it difficult to accept that if the applicant were concerned about his son’s health to the claimed extent, he did not travel to Peru to be with his sick son. The fact that the applicant did not return to Peru raises some doubts about his explanation that his son’s illness was essentially the reason for the low attendance. The Tribunal notes that the applicant is enrolled in the certificate III in bricklaying course, however this is not a CRICOS registered course. Moreover, in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant’s enrolment in this course is a reason not to cancel the applicant’s visa. The evidence before the Tribunal indicates that the applicant has not been enrolled in a registered course since 26 July 2014 and that his last date of study was 23 July 2014.

15. In consideration of the evidence as a whole and on the basis of the available information, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

16. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia

17. The applicant was granted the visa to study in Australia. The evidence before the Tribunal indicates that the applicant is not a genuine student.

    Reason and extent of any breach of a visa condition (if relevant)

18. The Tribunal has carefully considered the applicant’s explanations and the Tribunal has given them weight.

19. On balance, the Tribunal is not satisfied that those factors led to the applicant not being a genuine student. The applicant was granted the visa in order to study in Australia.

    Degree of hardship that may be caused

20. The Tribunal appreciates that the cancellation of the visa may cause the applicant a certain degree of hardship such as not being able to pursue or complete further studies. If the visa is cancelled and unless the applicant has made other arrangements, he would become an unlawful noncitizen and could be liable to detention.  The applicant will have limited options to apply for further visas in Australia.

21. Overall, looking at the circumstances cumulatively, the Tribunal is not satisfied that there is a degree of hardship that would outweigh the reasons to cancel the visa.

    Circumstances in which ground of cancellation arose

22. As outlined above, the applicant’s attendance rate was lower than expected. His personal reasons as accepted by the Tribunal, do not explain the poor attendance.

    Past and present conduct of the visa holder towards the department

23. The applicant’s conduct towards the Department is noncontroversial; he responded to the notice.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

24. This is not a breach of the holder of a subclass 457 visa.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

25. The applicant is not in detention and if granted, he would be expected to comply with the conditions of any subsequent visa, including a bridging visa.

    Whether there would be consequential cancellations under s.140

26. There is no evidence before the Tribunal that there would be any consequential cancellations.

    Whether any international obligations would be breached as a result of the cancellation

27. There is no evidence before the Tribunal and the applicant is not claiming that there are any international obligations that would be breached as a result of the cancellation.

    The impact on any victims of family violence

28. There is no evidence before the Tribunal that there is any victim of domestic violence or that there would be any such impact.

    Any other relevant matters raised by the visa holder

29. The Tribunal acknowledges that the applicant travelled to Australia to study but the cumulative evidence before the Tribunal indicates that he is not a genuine student. The applicant was granted a visa to study in Australia and it is expected that he would do so.

30. In consideration of the evidence as a whole, the Tribunal has concluded that the applicant’s intention has not been consistent with the reasons he was granted the visa.

31. In essence and for those reasons, the Tribunal is satisfied that there are no factors that would lead to the favourable exercise of discretion in this matter.

32. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

33. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Antoinette Younes
    Senior Member

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.