Cardenas (Migration)

[2022] AATA 2702

Cardenas (Migration) [2022] AATA 2702 (14 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andres Cardenas

CASE NUMBER:  2010688

HOME AFFAIRS REFERENCE(S):          BCC2020/1640784

MEMBER:Joseph Lindsay

DATE:14 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 14 February 2022 at 5:16pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in full-time registered course – discretion to cancel visa – emotional breakdown after deaths of two friends – inconsistent evidence and no evidence of friend’s deaths provided – some psychological counselling after receiving department’s notice but no diagnosis made – new enrolment made after receiving department’s notice – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 June 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The applicant attended an audio hearing with the Tribunal on 17 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

3. 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

4. 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 (Cth) (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?

5. 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 full time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

6. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.

7. The applicant has provided to the Tribunal a copy of the delegate’s decision record dated 17 June 2020. The Tribunal has considered the delegate’s decision record. In the hearing, the Tribunal spoke with the applicant about the decision record. The applicant confirmed that all of the information in the decision record was true and correct.

8. The Tribunal put to the applicant that the information in the decision record stated that the applicant had not been enrolled in a fulltime registered course since 10 July 2019. However, the applicant said he had been enrolled. In subsequent discission with the applicant, he made admissions that he had ceased being enrolled in a fulltime registered course since 10 July 2019. However, the Tribunal received evidence from the applicant that after he received the Notice to Consider Cancellation (NOICC) dated 28 May 2020 from the Department, he applied for and obtained a Confirmation of Enrolment (COE) dated 10 June 2020 in a Certificate IV in Business as well as a Diploma of Marketing and Communication.

9. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study between 10 July 2019 and 10 June 2020. Accordingly, the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

   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 the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.

    The circumstances in which the ground for cancellation arose

11. In the hearing, the Tribunal discussed the applicant’s circumstances and asked him why he had not been enrolled in a registered course of study between 10 July 2019 and 10 June 2020.

12. In summary, the applicant said that he had an emotional breakdown. He said it was hard for him to identify exactly what caused his breakdown, but that he had two close friends who had passed away and he thought that these issues adversely affected him.

13. The applicant said that his friends were in Columbia. He said that one friend, Diana, passed away from kidney cancer and another friend, Francisco, died in a motorcycle accident. He said Diana died on 15 April 2019. He said that Diana actually had received treatment for cancer but that she ended up passing away from an infection. In respect to his friend Francisco, the applicant said that Francisco died in mid-2020.

14. The Tribunal then asked the applicant whether his English language abilities might have any impact on his ability to study. However, the applicant said he did not think his English language abilities were the main reason why he ceased his enrolment in mid-2019. The applicant said he felt that, at that time in mid-2019 he felt that he didn’t feel he could study. He said he did not feel that he was emotionally well at that time. However, the applicant said that he did not look for any help at that time. He said he does not have any medical diagnosis of any mental health issues. The applicant said he did have some therapy sessions.

15. The Tribunal referred to the response that the applicant provided to the Department and noted he referred to his friend Diana passing away. However, in the response to the Department the applicant said his Diana passed away in April 2018. In response to the Tribunal’s query as to why there was a difference in his evidence to the Department about when Diana passed away (April 2018) and in his evidence to the Tribunal about when Diana passed away (15 April 2019), the applicant said he was confused with the year she died and that he thought that Diana passed away in April 2018.

16. In response to the Tribunal’s query as to why there was a difference in his evidence to the Department where he said that Francisco died in May 2019 but in his evidence to the Tribunal he said that Francisco died in mid-2020, the applicant said he could provide evidence to prove the death. When asked when Francisco died, the applicant said Francisco died around mid-2019.

17. The Tribunal put to the applicant that in his evidence to the Department he said he saw a psychologist. The applicant said he could not precisely remember the name of the psychologist. The Tribunal put to the applicant that in his evidence to the Department he said that he had been suffering depression and Post Traumatic Stress Disorder (PTSD) but in the hearing he said he did not have any medically diagnosed mental health conditions. In response, the applicant confirmed that he did not have any medically diagnosed mental health conditions. He said that he knew how he felt and that was why he said he suffered from depression.

18. When asked what actions he took in respect to his course provider in 2019, the applicant indicated that he did tell his course provider he was depressed and he had emails showing that he explained to his course provider that he was not feeling well. The applicant said he thought that he provided these emails to the Department. However, a review of the evidence provided to the Department showed that there were no such emails. The applicant offered to provide the Tribunal with the emails he said showed that he explained to his course provider that he was not feeling well.

19. When the Tribunal asked the applicant for an explanation about the delegate’s statement:

    The visa holder was also enrolled to complete a Certificate IV in Marketing and Communication and a Diploma of Marketing and Communication, however both enrolments were cancelled on 10 July 2019 due to unsatisfactory course progress and disciplinary reasons, respectively.

20. In response, the applicant said that his course was cancelled when he stopped attending classes.

21. When asked why he had not returned to Columbia, the applicant said he did not want to leave this way.

22. When asked if he consulted the Department about his problems in 2019, the applicant said “no.” When asked why not, the applicant said he did not know he had to communicate that information to the Department.

23. The Tribunal put to the applicant that it may find he had not taken reasonable steps to maintain his enrolment, and that as the visa holder he was required to abide by the conditions of his visa which included maintaining his enrolment. The Tribunal put to the applicant that it may find that the circumstances as he had described to the Tribunal were not beyond his control in respect to his ability to maintain his enrolment. In response, the applicant said he made a lot of mistakes. He said he understood that he was responsible for his situation.

24. The applicant indicated that he was 33 years old. The Tribunal put to the applicant that it may find that the applicant was not fresh out of school and he could be described a “mature person.” In response, the applicant said “yes.” The Tribunal put to the applicant that it may find that the applicant should have known better, he said “yes definitely.”

25. The Tribunal referred to a document that the applicant had provided in his response to the Department from a person named “Smirna Romero.” The Tribunal accepts that since the hearing, the applicant has provided an email dated 18 November 2021 showing that he had a Zoom session with Smirna Romero, Registered Counsellor, on 16 September 2020 at 6:00pm.

26. In addition, the Tribunal accepts that the applicant has also provided a number of other documents to the Tribunal.

27. The Tribunal has considered an email containing a number of screen shots of a person named “Francisco Lozano”, as well as “Diana Carolina Tellez Canas.” This email also contains screen shot of the emails he had between himself and Smirna Romero dated in June 2020.

28. The Tribunal has considered an email from the applicant to his course provider dated 10 November 2017 where he stated:

    good morning, I apologize for not responding to this quick mail, this last time I have had health problems and some other personal which have prevented me from fulfilling my student obligations, I know that I must comply with the assistance and the work.

    I'm going to catch up on my obligations this weekend.

    I would like to know if I can have an appointment and explain my case better? and also if it is possible to change to the certificate III since for me it has been a bit difficult the cetificado IV.

    I wait for your answer to be able to give solution to my case as soon as possible, many gravias and good day.

29. The Tribunal has considered an email from the applicant where he said he would provide death certificates for his friends but to date these certificates have not been provided.

30. The Tribunal has also considered a certificate the applicant provided from Ms Romero dated 5 June 2020 that states: 

    Andres Felipe Cardenas Rinaldi has started attending Counselling sessions on 5th June 2020.

    Due to his current emotional situation he has been unable to fully meet his working and education responsibilities for the past 10 months.

    He has committed to continue attending to Counselling sessions once a week to address this issue.

    Please feel free to contact me if you have any questions.

31. In respect of the above, the Tribunal makes the following findings.

32. The Tribunal accepts that the applicant had friends that likely passed away during the course of his studies and that these events have had an adverse impact on the applicant. However, the email from the applicant to his course provider dated 10 November 2017 indicates that the applicant was experiencing difficulties well before his enrolment was cancelled in mid‑2019. However, there is insufficient indication that the applicant has taken reasonable steps to engage with his course provider about the difficulties he claimed to have experienced and his attempts to remedy the issues he had experienced.

33. The Tribunal accepts that the applicant does not have any medical diagnosis of any mental health conditions. The Tribunal accepts that the applicant undertook counselling sessions in 2020, but not in the time period leading up to his enrolment cancellation in mid-2019.

34. In balancing the evidence, the Tribunal accepts that various instances can impact on a person’s well-being from time to time. However, the Tribunal finds that the applicant is a 33 year-old man and he is a “mature person.” The Tribunal accepts that, as conceded by the applicant, given his age he was responsible for his actions and that he should have known better.

35. The Tribunal finds that, in balancing all of the circumstances, the applicant did not take reasonable steps to maintain his enrolment, and that as the visa holder he was required to abide by the conditions of his visa which included maintaining his enrolment in accordance with visa condition 8202. The Tribunal is not persuaded that the applicant’s circumstances were beyond his control in respect to his ability to maintain his enrolment. Accordingly, the Tribunal places high weight on this information against the applicant.

    The purpose of the visa holder’s travel to and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

36. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was initially to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

37. The Tribunal accepts that the applicant appears to have generally complied with his other visa conditions. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

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

38. The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled. In response, the applicant indicated that he would be disappointed.

39. The Tribunal accepts that there may be some disappointment caused to the applicant if his visa was cancelled and gives this matter some weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

40. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140 of the Act

41. The applicant does not have any dependants on his student visa who would be affected if his student visa was cancelled. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

42. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

43. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to Columbia.

44. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

45. The Tribunal places some weight on this information in the applicant’s favour.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

46. The Tribunal asked the applicant if he feared anything in returning to Columbia. In response he indicated that he had no fears if he went back to Columbia. Accordingly, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

47. In respect to whether there were any other relevant matters he wished to discuss, the applicant said that he realised he made a mistake and he realised he would need to face the consequences, but he was not a criminal. The Tribunal put to the applicant that this was not a criminal proceeding. However, there were no other matters he wished to discuss. The Tribunal places no weight on this information.

    Conclusion

48. In balancing the circumstances above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Joseph Lindsay
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.