BLANCO PULIDO (Migration)

[2018] AATA 5955

BLANCO PULIDO (Migration) [2018] AATA 5955 (21 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CESAR ALBERTO BLANCO PULIDO

CASE NUMBER:  1613575

DIBP REFERENCE(S):  BCC2016/2461443

MEMBER:Rachel Westaway

DATE:21 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 21 December 2018 at 12:00am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – not enrolled in registered course for more than 15 months – personal problems – emotional issues – multiple course enrolments – compassionate circumstances – hardship faced by applicant’s wife and brother in law – financial stress – wife pregnant – brother-in-law’s mentor – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations (Cth) 1994, r 2.43, Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 August 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with a condition of the visa. 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. In applying for review of the decision, the applicant supplied the Tribunal with a copy of the delegate’s decision. The decision outlined that the Provider Registration and International Student Management System (PRISMS) indicated that the applicant had not been enrolled in a registered course of study since 1 May 2015 until the date of the visa cancellation which was 23 August 2016, a period of more than fifteen months.

4. The applicant was notified of an intention to consider cancellation and the applicant provided a response. This response has been taken into consideration by the Tribunal in regards to the review at hand. The applicant in his response accepted that he was not enrolled in a registered course of study and provided an explanation as to why this was the case.

5. The applicant appeared before the Tribunal on 17 March 2017 to give evidence and present arguments. The case was heard by a former member of the Tribunal. The applicant’s representative attended the hearing. The applicant’s partner who he refers to as his wife Ms Cumine and her mother Mrs Sonali Cumine also attended and gave evidence.

6. The Member who conducted the first hearing left the Tribunal and the case was reconstituted to the current Member. A further hearing was conducted on 15 March 2018. The applicant also provided form 956 advising of the termination of his appointed Migration Agent.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)(b). 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.

   EVIDENCE TAKEN AT FIRST HEARING

9. The applicant conceded that he was in breach of his visa condition and had not been enrolled in a registered course of study since 1 May 2015.

10. In relation to his reasons for coming to Australia, the applicant said that he was studying graphic design in Columbia, however his sister and brother were living in Australia, and following the birth of his sister’s first child he decided to come to Australia to meet his nephew and be with his family. He initially studied English for approximately 18 months, he then he commenced studies in panel beating and multimedia. At the time he stopped studying he was enrolled in a Certificate 3 and 4 of Engineering - Fabrication.

11. He explained that the past 3 to 4 years have been a mess. He has lived through a relative in Columbia being killed, his wife’s family were against the relationship he has with her and that has caused conflict and subsequently they have no support system.  He explained that his life was filled with stress and it was hard to keep up with everything. Additionally, the applicant’s housemate absconded with their rent money causing the applicant to receive a notice to vacate because his rent was in arrears. He also explained that he was attacked while walking with his wife and required surgery and spent two days in hospital. Finally, he explained that [details deleted].

12. The applicant said that it will be very hard on him and his wife if his visa is cancelled. They will have to move somewhere else. This will be particularly hard on his wife who is an Australian citizen and her family live here. He confirmed he would not return to Columbia.

13. The applicant said that he has been working and trying to save money to return to school, however unexpected expenses have arisen.

14. The applicant confirmed that he did not contact the Department to discuss his situation until he received the NOICC.

15. The applicant confirmed that the cancellation of his visa would not lead to any consequential cancellations

16. The applicant’s representative stressed that the Department are very tough on applicants who have had a visa cancelled and stressed the negative impact of the cancellation on any future spouse visa lodged by the applicant.

17. The applicant’s wife stated that Sri Lankan culture does not permit couples to live together before marriage or to marry a person of a different nationality and she fell out with her family because they objected to her relationship. She said that she was highly dependent on the applicant when she moved in with him and this caused additional stress. She said the cancellation of the applicant’s visa will have a severe impact because they will lose the support of her family who now accept their relationship and it will be detrimental to her plan to finish her degree, buy a house and have children.

18. The representative said that the applicant intends to complete his studies so that he is qualified to work and then he will apply for a spouse visa. The representative requested the Tribunal recommend the applicant’s case for Ministerial Intervention if it does not make a decision in favour of the applicant so that the applicant can receive priority on his spouse visa application. He said the processing time is two to three years and the applicant cannot move on with his life while on a bridging visa.

19. The applicant’s mother-in-law said that the reason the applicant’s stopped studying was because he did not have enough money to go to school after she sacked him when she discovered his relationship with her daughter. She said her daughter’s mental health will decline if the applicant has to leave and that she wants grandchildren.

20. The applicant provided the following evidence to the Tribunal. A marriage certificate indicating he is married to Ms Cumine. A doctor’s referral to Sunshine Emergency dated 1 July 2015 indicating the applicant had “severe swelling and erythema with lymph tracking toxic with rigors and a temperature of 38”. A medicate certificate confirming the applicant’s wife attended day surgery for a procedure on 20 February 2015 at the Women’s Clinic in Victoria. A Completion letter dated 26 May 2014 indicating the applicant had completed a Diploma of Interactive Digital Media on 6 April 2014 and was an excellent student

21. On 21 March 2017 the applicant’s migration representative provided a submission post hearing stating that the primary reason for the breach was the objections of Ms Cumine’s family. However the submission outlined that she was now prepared to extend the support for studies for the applicant.

22. The submission outlined that Ms Cumine was pregnant in early 2015 to the applicant but the pregnancy did not progress which caused additional stress to the applicant. Then in July 2015 the applicant was assaulted and underwent surgery. These circumstances were argued to be beyond the applicant’s control and the Tribunal was asked to consider these. The Tribunal was also asked to give weight to the fact that the applicant did respond to the NOICC. The submission requested that the Tribunal give consideration to the Universal Declaration of Human Rights pertaining to marriage and that every grownup has the right to marry and have a family if they want to. Finally the submission asked for consideration to be given to Ms Cumine who was studying and that should she need to depart Australia to be with her husband this would create hardship and she is an Australian citizen.

23. The submission concluded by requesting the Tribunal refer the matter for Ministerial Intervention if an adverse finding is made.

    Does the ground for cancellation exist?

24. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 attached to the applicant’s visa. This condition requires the holder of the visa to be enrolled in a registered course.

25. The applicant was sent a NOICC on 12 August 2016 asking him to respond. It outlined that he may be in breach of condition 8202(2)(a), as he may not be enrolled in a registered course of study from 1 May 2015. The applicant responded to the NOICC confirming he was not enrolled and providing reasons why and requested that the visa not be cancelled.

26. The Tribunal explained to the applicant at both hearings about the condition attached to the visa and the dates in which it appears that he was not enrolled in a registered course of study. The Tribunal asked the applicant if these dates were correct. The applicant stated at the second hearing that he is not clear on the dates but a family member was killed and there were a range of issues which lead to him not being enrolled.

27. The Tribunal put to the applicant that based on the information before it, namely his response to the Department based on the NOICC and his oral evidence confirming he was not enrolled that he appears to accept that he was not enrolled in a registered course of study. The Tribunal stated that this period was from 1 May 2015 for a period of more than fifteen months. The applicant did not negate this. Furthermore the submissions provided by the applicant’s representative also confirmed that the applicant had accepted he breached this condition.

28. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) 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

29. 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, whether the visa holder has a compelling need to travel to or remain in Australia

30. The applicant told the Tribunal he was from Columbia and came to Australia with the intention to study. He said he first arrived in Australia on 24 December 2010.

31. He said that in Columbia he was enrolled in a graphic design course. He said he studied three years of a four year degree.  He explained his purpose in coming to Australia was to learn English. He enrolled in a course for general English and studied for a year and a half and then enrolled in panel beating and then he enrolled in a Diploma of Multimedia and a Certificate 3 and 4 in Engineering - Fabrication. He said that he completed the English course and the Diploma in Multimedia but he was not enrolled for the Certificate 3 and 4 in Fabrication. He explained that his objective was to have a range of skills to enhance his employment opportunities.

32. The Tribunal asked the applicant if he had a compelling need to remain in Australia and what he would do if the visa was cancelled. He said that he would like to return to studies and he would also like to apply for a partner visa as his wife is an Australian citizen. He said that he could do this if his visa was not cancelled. He said that he does not like to sit around and do nothing and during the period the visa has been cancelled he has not been able to do anything. He said that he wants to remain in Australia with his wife (de facto partner). He explained that she is on Centrelink payments and that is how they survive. He said that her family support them and they live in West Footscray above a restaurant.

33. The Tribunal asked the applicant what he would do if his visa was cancelled given his relationship. He said that he would probably take his wife back home. However he stated that she does not speak Spanish.  He said that he does not want to put the stress on her and so he hasn’t spoken about it.  He was waiting for the response and what he was able to do. He said that if he had to leave Australia it would affect his wife. He said he has not been back to Columbia for 8 or 9 years.  He explained that his sister is an Australia citizen and she has two children as well as cousins. He confirmed that he sees his nephew and niece weekly.

34. Having regard to the applicant’s evidence, I accept that the applicant may have travelled to Australia intending to study and that he did complete his English studies and the Diploma. I also accept that the applicant is married to an Australian citizen and that she has recently told the Tribunal that she is pregnant. I also accept that the applicant’s wife does not speak Spanish and that to return to Columbia may be stressful and would also cause a significant disruption to her studies. I also accept that the applicant would like to remain in Australia with his wife, especially as she is pregnant. I also accept that the applicant has family in Australia. Whilst the Tribunal acknowledges that the applicant has stated that he would like to recommence studies, there is nothing preventing the applicant from studying by distance or in his own country. Furthermore, whilst the cancellation of a visa would place a three year bar on the applicant applying for another visa, the applicant does have the opportunity to explore further migration options pertaining to a partner visa. I have considered the purpose of the applicant’s travel and stay in Australia and the reasons he has put forward to remain, I give these factors some weight in not cancelling the visa.

    the extent of compliance with visa conditions

35. I noted to the applicant that the period of his breach of condition 8202 appeared a significant period of time, namely fifteen months.

36. The applicant explained his reasons as detailed through the decision, claiming that those three to four years have been very difficult and that a family member in Columbia had died, and that the relationship with his wife was stressful as her family did not approve of it and they had limited money. He explained the first pregnancy and he also explained and provided evidence of a referral to hospital for what he has explained as injuries from an altercation. Whilst the Tribunal accepts that these things occurred, I do not find any of these reasons for his breach of the enrolment condition convincing in that the applicant had every opportunity to request a deferment, return back to Columbia for a period or even find employment elsewhere. The applicant did not provide any medical evidence to indicate he was unable to study for this period of time due to [certain conditions]. As I explained, I considered this condition to be important, because one of the primary reasons for holding a student visa was to be enrolled and to study, and he had admitted to doing neither for a considerable period of time. When I weigh his reasons and my views on those reasons as set out below, against the long period of non-enrolment and the fact that the applicant did not seek deferment, I have significant concerns about the period of breach which leads me to give this factor some weight towards the visa being cancelled.

    degree of hardship that may be caused (financial, psychological, emotional or other hardship)

37. I asked the applicant if he or others would suffer hardship if the visa were cancelled. The applicant said that he did not want the visa cancelled as his wife would suffer and she does not speak Spanish and would struggle to live in Columbia she he have to return. I note that the applicant explained that he and his wife are under financial stress and I also note that his mother in law has committed to assist him should he return to study.

38. The Tribunal accepts that a cancellation would be stressful for the applicant and his wife as they would need to quickly assess what they will do and determine where they will live. I also appreciate that this would be further compounded by the applicant’s wife’s pregnancy. I understand that it would be expensive as the applicant may seek to apply for his partner visa sooner than he would otherwise have and that this is expensive.

39. The applicant’s wife said they have been together for almost 4 years and married for 3 years. She said that her time line is blurry. She explained they have experienced medical and financial issues. She said they have faced tremendous hardship and have been living together for almost 4 years. All obstacles have been in their way and affect her greatly. She said that they are married and have a commitment. She would have to uproot her life and follow him. She is only 25 and travelled to one country and it will cause hardship and strain on the relationship.

40. She stated that she is healthy and well and has no health issues. She stated that they were mugged and she is nine to ten thousand in debt. She explained that her mother has a commercial cleaning company and her husband was working at the company. They were at a BBQ and this is how they met.

41. She said that she also runs a restaurant and her husband helps her out and keeps her company. She has one brother and a younger sister who is thirteen. She said that her mum is unwell with liver and kidney problems and her pelvis is deteriorating and she is needed to give her mother emotional support. If the visa is cancelled she will not be able to do this.

42. She confirmed that she would consider living in Columbia. However she can barely afford to live in Australia and she can’t speak Spanish. Her parents help her with everything. The Tribunal asked her how they would pay for a partner visa because it can cost approximately $7000 and she said that her salary through the restaurant and she will ask her parents for help.

43. The applicant’s brother in law gave evidence at the hearing. He explained that he works night shift and that the applicant has been an important part of the family and that in some ways he has taken the role of a parent. He said that he cares for his brother in law, the applicant and does not want the visa to be cancelled. He confirmed that the family would pay for $7,000 for the partner visa when the time comes to apply for this.

44. He explained that a cancellation would have a large impact on family because his sister and the applicant are his carers. He said that they push him to work and keep him on track. He explained that he had served a period in time in prison and that the applicant took him to parole meetings. He explained that he was on parole after he turned 18 and he spent a year in jail. He said that he had a strict curfew of 8pm and he must live with the applicant in their house. He said that his brother in law helped him stay away from the bad influences in his life and taught him how to fish.

1. He said that he was convicted of armed robbery and he was involved with people whom he met at school and they were his friends since year 7. He said that the applicant has showed him that you can be a better person and have a better life style and make the change. He confirmed that in the past he was involved in drug but with the support of his family he is no longer involved.  He said that the applicant helps his mum at the restaurant with physical work and drives them everywhere. He is also helping build the beer garden.  He confirmed that his parole finished on December 9 2017.

2. He has made new friends. He never saw what young scene because he mixed with the wrong people and he said that his sister and the applicant have introduced him to a new lifestyle and he has enjoyed it more.

3. I accept as stated by the applicant’s representative that if the visa is cancelled the applicant is placed at a disadvantage when applying for a partner visa. I also accept as the applicant has stated that he has plans and would like to start a family and save and buy a house and that a cancellation would stand in his way. I accept that a cancellation limits the options for the applicant to remain onshore for three years. I accept that this would be a stressful period for the applicant and his wife and that they would experience some hardship. I am particularly mindful of the applicant’s wife and the fact that she is pregnant and supports her own family in Australia and that if the visa is cancelled, she will experience significant hardship. I also accept that the applicant has been a necessary and positive influence on his brother in law and it was evident in the hearing that the witness relied significantly on the applicant when he was on parole and trying to break away from drugs and criminal activity and the friendship group whom he knew. I accept that if the visa was cancelled then the witness would also suffer significantly because he would no longer have a daily mentor and support person. Whilst the period of noncompliance is extensive, namely fifteen months, I give the hardship faced by the applicant’s wife and her brother more weight in favour of the visa not being cancelled.

   circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

4. The applicant said that “it was too much” and he explained that he had [a certain condition] and it has been very hard on him. He said that this is why he didn’t care and he didn’t go to school. The Tribunal asked the applicant if he was treated for [his condition] and he said he was not because he couldn’t afford it.

5. His family were paying for the associated study costs and he did small jobs for extra money. However he said that when he entered into the relationship with his wife they stopped paying for him. He said that he then had to look after his wife. He said that his family are traditional and going out with someone from a different culture was problematic for them. He explained that his wife’s parents were born in Sri Lanka and they also didn’t approve. It is hard for traditional people to accept that.

6. He told the Tribunal that his mother died two years before he came to Australia and he had no relationship with his father. He said he met him for the first time when his mother died. He said that his sister and brother in law paid for him to study and go overseas. He explained that his sister was in the process of obtaining a divorce and they fought over the money his studies costs. They worried they would need to look after his wife too.

7. The applicant was asked why he did not return to Columbia and he said that he met his wife. He said that he understands the consequences of the cancellation. He said he is 29 years of age and his wife is 25 years of age.

8. I have had regard to his explanations and responses at the hearing, and I have considered his explanations for why he was not enrolled for this significant period and therefore in breach, and I do not accept the circumstances were beyond his control or that the circumstances indicate reasonable explanations for not being enrolled for such a period of time and I give this factor significant weight towards the visa being cancelled.

   past and present behaviour of the visa holder towards the department

9. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. I give this some little weight in his favour.

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

10. Not relevant.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

11. The applicant indicated that if the visa remained cancelled he would try and apply for a partner visa or seek Ministerial Intervention and if he had to leave he would go to Columbia and therefore there is no indication that he would become unlawful or be subject to detention and I give this factor no weight.

    whether there would be consequential cancellations under s.140

12. Not relevant.

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

13. In this case it does not appear that this consideration is relevant as when asked the applicant indicated there was no reason he cannot return to Columbia and has not made any claims which would relate to this consideration.

    Summary

14. The Tribunal is mindful of the fifteen moth period of noncompliance however; having considered the evidence individually and cumulatively, the Tribunal has placed a significant amount of weight on the hardship faced by the applicant’s wife and brother in law if the visa remains cancelled. The Tribunal places some weight on the fact that the applicant appears to have come to Australia with a genuine intention to study.

15. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

16. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Rachel Westaway
    Senior Member