CARELLA (Migration)

[2019] AATA 5970

CARELLA (Migration) [2019] AATA 5970 (8 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Donato Maurizio CARELLA

CASE NUMBER:  1716891

HOME AFFAIRS REFERENCE(S):          BCC2017/1998370

MEMBER:Mark Bishop

DATE:8 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 08 October 2019 at 4:34pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector visa – enrolment in a registered course – applicant ceased courses – applicant suffered work injury – financial hardship – genuine student – intention to remain permanently in Australia – decision under review affirmed

LEGISLATION

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

CASES

Liu v MIMIA [2003] FCA 1170            

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 July 2017 made by a delegate of the Minister for Immigration and Border Protection 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).

2. 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 October 2019.  

4. On 6 September 2019 the Tribunal wrote to the applicant and requested he provide a copy of the decision record. On 16 September 2019 the applicant provided a copy of the decision record to the Tribunal.

5. 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

6. 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?

7. 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).

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

9. The delegate outlined the background circumstances as follows:

   ·    On 3 March 2016, the applicant was granted the visa on the basis he intended to study in the Vocational Education and Training (VET) sector in an Advanced Diploma of Business and Diploma of Marketing;

   ·    The applicant was already onshore at time of grant of the visa, having held a previously granted TU572 Student visa;

   ·    Condition 8202(2)(a) states the applicant meets the requirements if the visa holder is enrolled in a registered course;

   ·    According to the Provider Registration and International Student Management System (PRISMS), the visa holder was not enrolled in a registered course of study from 2 November 2016;

   ·    The visa holder is currently onshore without a valid Confirmation of Enrolment (COE);

   ·    The date of the delegate’s decision was 28 July 2017.

10. The applicant was notified of the intention to consider cancellation (NOICC) on 5 July 2017 and the notice invited the applicant to respond in writing. The applicant did respond in writing. He did not state in his NOICC response whether he agreed or disagreed on the grounds for cancellation He outlined reasons for non-cancellation of his visa. He outlined the following:

    ·The applicant suffered a work injury, resulting in him being unable to work. He therefore could not afford to pay the school fees or course enrolment;

    ·He was denied any insurance from the workplace accident;

    ·The applicant has been underpaid by his previous employer what he believes is “a big amount of money”;

    ·The applicant arrived in Australia 7 years ago and has never left as he has found something good for his future and a very nice lifestyle;

    ·He is an Italian citizen and his country is suffering an economic crisis; there are no jobs for him and no future, which is totally opposite to Australia, “… since it is very easy to find a job…”

    ·He does not want to go back to live in Italy because his life is over here now. He has friends, pets, cars, a contract of a house and a new job waiting for him once his injury is healed;

    ·If he has to return home, he will lose too much money and have to leave his accumulated belongings behind;

    ·It would seriously upset his family if he were to return to Italy. He has not advised his family as his father is ill;

    ·The applicant wants to be granted permanent residency.

    ·He will contribute to building this country, which is already what he is doing.

11. Critical dates in this review hearing re as follows:

    ·Applicant suffers work injury 8 June 2016;

    ·Period of non-enrolment commences 2 November 2016;

    ·NOICC issued 5 July 2017;

    ·The delegate made a finding that according to PRISMS the applicant did not enrol in a registered course of study from  2 November 2016 until 28 July 2017;

    ·Decision record date 28 July 2017.

12. On the day before the hearing the applicant provided a large amount of written material to the Tribunal. The material consisted of the following:

    ·The applicant provided a written submission that outlined the following:

    oThe applicant suffered a work related injury to his back and groin on 8 June 2016. The applicant was experiencing some respiratory and skin issues which he attributed to inhaling chemicals associated with his work as a welder. On 15 June 2016 he sought medical advice. Thereafter commenced “long and tortuous both medical and legal as he applied for Workers Compensation”;

    oHe was unable to return either to study or work during this period;

    oHis father became ill and could not provide financial support for re-enrolment in study;

    oHe returned to work in late 2017. Payments from NSW WorkCover commenced in March 2018. He did not have the financial resources to re-enrol in a suitable course;

    oThe cancellation of his Student visa be remitted and he be given the opportunity to achieve “Permanent Residence in Australia”. He did not arrive with that intention but the longer he has remained here, “the more  he has become persuaded that this great country o fours is the place for him to settle”

    ·Various appointment notices dated July 2016, August 2016, October 2016, November 2016, January 2018 relating to work related injuries and skin conditions;

    ·Medical Certificate dated 26 February 2016 that advised the applicant is “very much wanting to stay in Australia…but finding current circumstances have made his complying with all his obligations difficult…I would hope that his plight may be taken into consideration when his immigration status is being reviewed”

    ·Medical Certificate dated 19 July 2016 advising of back pain, exacerbation of eczema, stress and anxiety and treatment under worker’ compensation;

    ·Doctor’s report dated November 2016 that outlined his history and [then] current symptoms;

    ·Medical Certificate advising of inability to work from 24 January 2018 until 30 January 2018;

    ·Page 2 of an undated medical report signed by a Dr John Bentivoglio, WorkCover Approved Impairment Assessor that outlined details of examination, investigations, diagnosis and opinions relating to the applicant. The medical report stated “’this gentleman could cope with selected duties at work…”

    ·Consultant Dermatologist report dated 22 August 2019 advising the applicant suffered from psoriasis which was worsening due to his stressful situation;

    ·Solicitor letter dated 2 August 2016 advising GIO had accepted provisional liability for weekly payments of workers compensation and payment of $665 per week up to 7 September 2016 and reasonable medical and hospital expenses up to a limit of $7,500;

    ·Various pieces of legal correspondence (June 2016 until February 2018) relating to acceptance of workers compensation liability, medical reports, doctor’s appointments, applications to resolve disputes, arbitration listings, offer of settlement dated 15 December 2017 of approximately $5,670 for lost wages, rejection of offer (contrary to legal advice) dated 30 January 2018 and further notice of conciliation and arbitration hearing for 8 February 2018.

    Does the ground for cancellation exist?

13. On 3 March 2016 the applicant was granted a Student (subclass 572) Vocational Educational and Training Sector visa. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA [2003] FCA 1170.

14. The decision record contained information from the Provider Registration and International Student Management System (PRISMS). It showed the applicant had not been enrolled in a registered course of study from 2 November 2016 up to the date of the decision. The delegate made a finding the applicant did not hold enrolment in a CRICOS registered course from 2 November 2016. In evidence the applicant advised the finding of the delegate was correct and he did not enrol in a registered course of study from 2 November 2016 until 28 July 2017.

15. Having regard to the information in the PRISMS as outlined in the decision record and confirmed as correct by the applicant in evidence, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 2 November 2016. The Tribunal finds that he breached condition 8202(2)(a) of his visa.

16. 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).

17. 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 to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

18. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

    Consideration of discretion

19. 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 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

20. The applicant was granted a Student visa for the purpose of study in Australia. He did not maintain his enrolment in the registered courses that he applied to study onshore. He advised the Department and Tribunal as follows:

    ●In his NOICC response, the applicant stated “…I am not a very good student, I have actually never been at that in my whole life, not even in my country where I stopped to go at school when I was 15 years old, starting straight away to work, this is the reason why probably student visa is not anymore the way I want to get to stay over here…” This indicates to the Tribunal the visa applicant does not wish or intend to continue his study in Australia, which was the primary purpose for which the visa was granted.

    ●The applicant stated in his NOICC response “…I have a new job waiting for me, as soon as my injury would give away….” Whilst the Student visa does permit visa holders to undertake a limited number of hours work, this is not the primary purpose of the visa.

    ●The applicant requested in the NOICC response “…I do really want to ask to you if could be possible to have my Permanent Residency in this way and so keep doing my life here into Australia…”[sic]. This indicates the visa holder now wishes to remain permanently in Australia to live, rather than remain for a temporary period of stay to achieve an educational qualification.

    ●The applicant be given the opportunity to achieve “Permanent Residence in Australia”. He did not arrive with that intention but the longer he has remained here, “the more  he has become persuaded that this great country of ours is the place for him to settle”

21. In evidence the applicant advised his compelling need to remain in Australia was that he had lived in Sydney for 8 years. There was a lot of opportunity in Australia. He has a girlfriend.  He has a social life and a network of friends. He has a job. He has a new life in Australia and wants to maintain that life. There was little on offer to him in Italy and it was unlikely his family would be able to support him.

22. The applicant has remained onshore for an extended period of time, for purposes other than to undertake study and achieve an educational qualification. This is not in line with the Student visa program. An applicant for a Student visa is expected to enrol in a registered course of study and progress academically. A Student visa is not a vehicle to gain permanent residence in Australia. The applicant in his written submissions and evidence to the Tribunal made it clear he wishes to remain in Australia as a permanent resident and keep working in his current field. The Tribunal gives this consideration little weight in favour of the applicant.

    The extent of compliance with visa conditions

23. The applicant has not been enrolled in a registered course of study since 2 November 2016 and therefore has not been complying with visa condition 8202 for a significant period of time.

24. The delegate made a finding the Department made the applicant aware of the conditions associated with his visa, at time of visa grant. The Tribunal considers that he would have been aware that any non-compliance with those conditions would adversely affect his eligibility to hold the TU572 Student visa.

25. The Tribunal gives this consideration no weight in favour of the applicant.

26. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study.  As such, the Tribunal gives no weight to the fact that there appears to be no additional breaches.

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

27. The applicant addressed the issue of hardship in his written response to the NOICC. He advised as follows:

    ●The visa applicant stated in his NOICC response that he has family in his home country and also holds skills that enable him to seek employment, having been employed as a welder previously. Whilst the Tribunal acknowledges that the economy in his home country may not be prospering the Tribunal does not consider the applicant will suffer extreme hardship if he was to return to his home country, as the Tribunal considers he will be able to resume life with limited difficulty, particularly with family support.

    ●As the visa was due to cease on 7 March 2018 the Tribunal considers that if the visa is cancelled, the applicant will not suffer any significant hardship over and above what would be expected he would incur in having to return to his home country on the scheduled visa cessation date. The applicant will incur similar financial and emotional hardship in having to finalise affairs, dispose of assets and break ties when departing Australia if the visa is cancelled, as what would have been expected if his visa expired naturally in March 2018.

    ●The TU572 Student visa is a temporary visa, granted for a specific period of stay onshore. No expectations are given to temporary visa holders that their stay onshore will be extended beyond the validity of the visa. While it is open for visa holders to apply for another visa in line with a new purpose for remaining onshore, if they wish to remain beyond the validity of their temporary visa the Tribunal notes that at time of [the delegate’s] decision, departmental records did not indicate the applicant had applied for any other visa to replace his Student visa. Similarly in evidence the applicant advised the Tribunal he had not applied for any other visas after November 2018 (excluding his Bridging visa).

    ●The applicant advised the Tribunal he did not have any family members in Australia. There is no evidence before the Tribunal that any family members in Australia will be negatively impacted by the cancellation of his visa.

    ●Any emotional hardship suffered by family members in his home country is unfortunately a consequence of the cancellation of the visa under these grounds.

28. The Tribunal asked the applicant to update the Tribunal on his injury, workers compensation matters and resolution of his workers compensation application (if any) post February 2018. The applicant advised he had settled the matter in early February 2018 in NSW. Since that time he had been working and was currently employed full time as an operations manager in a metal factory in Sydney.

29. The Tribunal asked the applicant to address the issue of hardship. The applicant advised he would be stressed without a job. His family in Italy would be unable to support him. He has a good job in Australia. He would lose his girlfriend in Sydney. He would lose his pet. He wants permanent residence in Australia.

30. It is clear to the Tribunal the applicant has settled in Australia and has all of the normal features of a settled life of a relationship, employment, an income and a future. The applicant wishes to remain in Australia with the purpose of employment and further building his own life. He does not wish to return to Italy. The Tribunal understands the applicant will undergo a serious degree of hardship if he should return home to Italy. However this hardship is primarily caused by a decision of the applicant during 2016 not to maintain enrolment in a registered course of study.

31. The Tribunal gives this consideration some weight in favour of the applicant.

    Circumstances in which ground of cancellation arose

32. The applicant in his response to the NOICC advised the Department as follows:

    ·     The applicant stated that he had suffered a workplace injury, which impacted on his ability to earn an income. He was therefore unable to meet the payments of course fees or enrolment.

    ·     He further stated that he had been underpaid by his employer over the past 4 years, which amounted to a significant amount of money.

33. The Tribunal has reviewed this material summarised in paragraph 12 above as to his injury at work and protracted correspondence relating to injuries, doctor appointments, medical opinions, solicitors letters and attempts at resolution in NSW  and notes the following:

    ●There was evidence submitted (medical and otherwise) of the applicant’s work related injury. The Tribunal notes the applicant provided a copy of a medical report. The medical report stated “’this gentleman could cope with selected duties at work…”

    ●The applicant did not provide any medical reports that advised he could not or should not engage in study during his period of non-enrolment in a registered course.

    ●According to PRISMS as outlined in the decision record the applicant’s last date of study was 11 September 2016. Notes entered by the education provider upon cancellation of the enrolment on 2 November 2016 state “Student has been sent several warning letters and emails for non- payment of fee $1350 due since 27/6/2016. Intervention letter sent followed by Intention to report. Student did not respond”.

    ●There is no evidence of the applicant having sought a deferral on compelling/ compassionate/medical grounds, for the course he was studying, before his COE was cancelled.

    ●While the Tribunal accepts that his sustaining an injury may have been beyond his control, there is no information before the Tribunal to indicate the failure to seek a deferral and/or respond to the intervention offered by the education provider was due to circumstances beyond his control.

1. The Tribunal has considered all the material outlined in paragraph 12 above. It is clear the applicant was party to a protracted process involving numerous appointments and attendance on a range of professional personnel (including doctors, specialists, assessors and solicitors) in the period November 2016 until July 2017. This was because of an injury incurred at work in June 2016. The period November 2016 until July 2017 is critical as this is the period of non-enrolment in a registered course. The overwhelming bulk of his appointments were in the period July 2016 until November 2016 after his injury and prior to his period of non-enrolment. Whilst the Tribunal accepts it is natural for an injured worker to seek professional advice and this may necessitate a large number of appointments it is evident the applicant was healthy enough to embark upon and carry on this process for a lengthy period of time. It is not clear to the Tribunal that the applicant was unable to attend his education provider during the period of time of his non-enrolment. The applicant did not provide any documentation that suggests he could not or should not have enrolled in a registered course of study in this period of non-enrolment. He did not provide a medical report or report prepared by a like professional that advised him not to study in this period of non-enrolment. He did not apply to his education provider for a deferral of enrolment in this period of non-enrolment due to compassionate or compelling circumstances (his injury in June 2016). The Tribunal gives this consideration some little weight in favour of the applicant.

2. The Tribunal acknowledges that international students may face many adjustments and challenges when studying and living in Australia. It is a reasonable expectation that any visa holder understands the conditions of a student visa and seeks assistance from the Department if required.  There is no evidence before the Tribunal that the applicant ever contacted the Department in relation to his student visa and any issues he was facing.

3. The ground for cancellation arose when the applicant first ceased enrolment with a registered education provider and the applicant has been given an adequate amount of time to rectify his enrolment status. The Tribunal considers it reasonable to expect that the visa holder was aware when he was granted the visa that it had condition 8202 imposed on it which includes that the visa holder is enrolled in a registered course. The Tribunal considers the visa holder would have been fully aware that he had indeed ceased enrolment with a registered education provider as he is a direct party to that enrolment. Therefore the Tribunal considers that he would reasonably have realised that this fact would have impacted on his eligibility to continue to hold his Student visa.

4. The fact remains that the applicant was not enrolled in a registered course of study from 11 September 2016. The Tribunal gives this consideration significant weight.

   Past and present behaviour of the visa holder towards the department

5. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach

   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

6. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart or be detained. It is noted the applicant may be barred from re-entering Australia for a period of three years. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

   Whether there would be consequential cancellations under s.140

7. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

8. There is nothing before the Tribunal to indicate there are international obligations to consider.

9. Any other relevant matters

10. The tribunal invited the Migration Agent (MA) for the applicant to make submissions. The MA used to be a headmaster in a school in Sydney. The MA advised the Tribunal the applicant had not applied for any other visa. He is of the view the applicant is in a disturbed state. He did not have a referral to a psychiatrist. Despite his injuries he has not returned to Italy. He acts without asking. His emotional state is up and down. He needs counselling. He is genuine in his desire to remain in Australia. The Tribunal has considered these remarks. Neither the applicant nor the MA provided a copy of a report or medical opinion from a psychiatrist, psychologist, medical or other professional counsellor that address these matters. The MA advised the Tribunal he did not have such a report. The Tribunal gives this consideration little weight in favour of the applicant.

11. The applicant advised the Tribunal he did not wish to make any further comments.

12. The Tribunal is not aware of any other relevant matters.

13. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass TU-572 visa  and that a breach of almost eight months is significant in the context of a student’s study period.

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

    DECISION

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

    Mark Bishop
    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.