Camacho Romero (Migration)

[2017] AATA 2485

Camacho Romero (Migration) [2017] AATA 2485 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Juan Sebastian Camacho Romero

CASE NUMBER:  1618410

DIBP REFERENCE(S):  BCC2016/2804194

MEMBER:Tigiilagi Eteuati

DATE:8 November 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 570 Independent ELICOS Sector visa.

Statement made on 08 November 2017 at 7:15pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 570 Independent ELICOS Sector – Erroneous completion date for the course – Email contact to the Department – Completion of all courses – Strong English language skills – Genuine student

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 October 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 570 Independent ELICOS Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant breached the condition of his visa to remain enrolled in a registered course. 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 8 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.

4. 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

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.

8. The Minister’s delegate found that the applicant had not been enrolled in a registered course since 8 January 2016. This was conceded by the applicant and accords with records held by the Department.

9. 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

10. 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.

11. 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).

12. The applicant explained that when he first arrived in Australia to study English in February 2014 he was enrolled in and intensive general English course. He completed this course in July 2014. As his visa was about to expire, he applied for a second subclass 570 visa which was granted on 29 July 2014.

13. When he applied for his visa he was enrolled in a Cambridge First Certificate Preparation Course, to be followed by a Certificate II in Spoken and Written English and then a Certificate III in Spoken and Written English. When the COEs for these courses were submitted to the Department with his application, the COE for the Certificate III erroneously recorded the completion date for the course as 8 November 2016 rather than 8 January 2016. The applicant provided the Tribunal with evidence of this error and this accords with the PRISMS records held by the Department.

14. It appears that as a result of the erroneous COE that was provided to the Department, the applicant was granted a subclass 570 visa which was to expire on 17 March 2017. Presumably an earlier expiry date would have been granted if the correct date for completion of the Certificate III course had been provided to the Department.

15. After the applicant’s Certificate III course was completed on 8 January 2016 he said that he went to the Department offices in Brisbane to explain his situation and was told that he would have to send an email to the Department. The Departmental officer gave the applicant an email address for this purpose.

16. On 19 January 2016, the applicant sent an email to the email address provided by the Departmental officer which stated:

    “Checking my documents because recently finished my studies, I realised that my visa expires in 15/03/2017, when technically this should be much earlier due the length of my last course is just 25 weeks, however the corresponding COE shows the length of my course is from 21/01/2015 to 08/11/2016 which is almost 1 more year.

    I am aware that I must study during that year and I would really want to do it, but at the moment I don’t know what is the right way to do it: should I enrol directly in a college? Or should I start a new Visa application process?

    I would like to express my interest to get an answer about this issue with my Student Visa to solve asap.”

17. The applicant received an automated response which did not address the issues the applicant had raised. He sent a similar email to the Department again on 3 March 2016 and again received an automated response.

18. The above information was provided to the Department in response to the Notice of Intention to Consider Cancellation (NOICC) but the delegate decided to cancel the applicant’s visa.

19. The applicant explained that he did not apply for a further visa after his course had been completed because he was unsure whether he needed to do so or whether he could study on the visa he had. He said that this uncertainty was one reason why he approached the Department and then sent two emails to the Department describing his situation and seeking advice.

20. The applicant said that he wished to continue to study in Australia. He said that he wished to study a Masters degree in engineering or a vocational course relevant to his area of expertise. The applicant said that he has been in a relationship with a woman in Australia for about a year and a half.

21. The Tribunal finds that the decision to cancel the applicant’s visa should be set aside. The applicant has demonstrated that he is a genuine student who has completed all of the courses in which he was enrolled. His strong English language skills are demonstrated by his submissions to the Tribunal at the hearing and the overall score of 6.5 he achieved in a recent IELTS test.

22. The Tribunal accepts that the COE initially issued by the education provider included an erroneous completion date for the course and that this was no fault of the applicant. After the applicant completed his course he went to the Department, explained his situation and then sent two emails to the Department doing the same at the instruction of the Department. It is not clear what more the Department expected the applicant to do in the circumstances. The applicant has been open, honest and proactive in his dealings with the Department.

23. The Tribunal finds that the applicant has done exactly what he was supposed to do in respect of his studies and should not be prevented from applying for another visa for three years by PIC 4013 because he completed all of his courses some 15 months before his visa expired.

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

    DECISION

25. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 570 Independent ELICOS Sector visa.

    Tigiilagi Eteuati
    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.