ARIAS CACERES (Migration)

[2018] AATA 2396

ARIAS CACERES (Migration) [2018] AATA 2396 (4 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SERGIO ANDRES ARIAS CACERES

CASE NUMBER:  1617045

DIBP REFERENCE(S):  BCC2016/2889165

MEMBER:Mr S Norman

DATE:4 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 04 July 2018 at 4:45pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 572 (Vocational Education and Training Sector) – Registered course enrolment – Gaps in course enrolments – No evidence of current enrolment status – Degree of hardship – Mental health – Practice and procedure – No response to hearing invitation – Decision made on review – Decision affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 189, 198, 362B

Migration Regulations 1994 (Cth), Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 October 2016 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(1)(b) of the Migration Act 1958 (the Act). The delegate cancelled the visa on the basis that the applicant breached condition 8202 (enrolment). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

2. By letter dated 3 January 2018 (dispatched by email), the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 4 July 2018. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. Two SMS hearing invitation texts were sent to the applicant shortly prior to the hearing; however both were then listed as “Delivery of SMS hearing reminder failed”.

3. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. Neither did he otherwise reply to the Tribunal’s hearing invitation letter (as he was requested). In the circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

6. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa on 30 June 2015. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 13 September 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in a registered course of study since 14 October 2015. Further, that it appeared there may be grounds for cancellation of the applicant’s visa under s.116(1)(b) of the Act. The applicant responded to the NOICC letter on 27 September 2016. However, the applicant did not dispute there were grounds to cancel his visa.

8. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

9. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

10. Regarding the purpose of the applicant’s travel to and stay in Australia, when applying for the visa the applicant claimed to wish to study a Certificate IV in Business, and a Diploma of Management and an Advanced Diploma of Management at the Australian Institute of Professional Education. However, based on the evidence before the Tribunal, as at the date of the delegate’s decision the applicant was not enrolled in a Commonwealth registered course from 14 October 2015 until 21 September 2016. He subsequently obtained enrolment in a Certificate IV course in Business and a Diploma of Leadership Management course on 21 September 2016. However these enrolments were only obtained after the applicant had received the NOICC letter. Given the above evidence, the Tribunal is not satisfied the applicant’s present intention for staying in Australia, is for the purpose of study.

11. Regarding the extent of the applicant’s compliance with conditions to which his visa was subject, the applicant was granted the visa on 30 June 2015 and he ceased being enrolled in a registered course between 14 October 2015 and 21 September 2016. The Tribunal believes this breach to be significant.

12. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, the Tribunal accepts that if his visa is cancelled the applicant (or his family) may suffer some financial hardship. He may also then be subject to being detained under s.189 and removed under s.198 of the Act. However, based on the evidence before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention. Further, I am satisfied he can temporarily retain his Bridging visa in order to remain in the community to finalise his affairs prior to departing.

13. Regarding the circumstances which gave rise to the visa cancellation, the applicant said his English language skills were not sufficient; his father’s health deteriorated; he suffered financial struggles; there were problems with his education provider; this all impacted his mental health; he felt anxious and stressed; he commenced a relationship in February 2016; he did not mention his depression to his family; he consulted his family psychologist by Skype; his father’s health improved in late 2016 as did the family’s financial circumstances; he wished to remain in Australia. The applicant also provided medical evidence, COEs, evidence of English-language courses he attended (amongst other things).

14. That being said, the primary objective of a Student visa holder in Australia is to remain in a registered course of study. The applicant failed to do this from 14 October 2015 until 21 September 2016. Notwithstanding his health and other issues, it remains the responsibility of the applicant to continue to meet the criteria for the grant of his Student visa. There is no evidence the applicant approached an education provider to seek a deferral or release during his period of non-compliance (though he did suggest there were unspecified ‘problems’ with his education provider). There is no evidence the applicant required any medicine to overcome his mental health issues. There is no evidence the applicant sought to depart Australia in order to be with his father who was suffering ill health or to obtain face-to-face medical assistance in his country of origin. In the circumstances the Tribunal is not satisfied the aforementioned issues provides a reasonable explanation for failing to meet ongoing criteria for his Student visa.

15. The Tribunal notes the applicant said he ‘aspires to establish a future’ for himself by studying in Australia, however the Tribunal is satisfied he understood the criteria he needed to meet to retain his Student visa in Australia, and that he has failed to do so.

16. Regarding the applicant’s past and present behaviour towards the Department, there is no evidence before the Tribunal the applicant has been uncooperative with either the Department or the Tribunal. There is no evidence before the Tribunal that any other person’s visa in Australia would or may be cancelled if the applicant’s visa is cancelled. Regarding whether Australia has international obligations that would or may be breached if the applicant’s visa is cancelled, based on the evidence before the Tribunal I am not satisfied that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

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

    DECISION

18. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.  

    Mr S Norman
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.