CERIOLI (Migration)

[2018] AATA 4783

CERIOLI (Migration) [2018] AATA 4783 (9 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andrea Maria Lucio CERIOLI

CASE NUMBER:  1806621

HOME AFFAIRS REFERENCE(S):           BCC2017/2105256

MEMBER:Ann Duffield

DATE:9 October 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 09 October 2018 at 10:23am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – work hours condition – evidence of payslips – letter from employer – academic progress – completion of courses – decision under review set aside


LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth). Schedule 8 Condition 8105

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 was in breach of condition 8105 of his subclass 500 student visa. That condition limits the hours of work up to 40 hours a fortnight while his course is in session. 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 9 October 2018 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent, who also attended the scheduled hearing.

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

   BACKGROUND

6. The applicant provided the Tribunal with a copy of the delegate’s decision along with his application for review.

7. The applicant is a citizen of Italy born on 3 September 1990 (28 years old). He first came to Australia in August 2014 on a visitor visa and returned in November 2014 on a working holiday visa. He subsequently applied for and was granted a student visa.

   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.

9. In August 2017 officers of the Department of Home Affairs attended the cafe where the applicant was working at the time, a café called Italians Do It Better in Melbourne. After a discussion with the applicant and a subsequent written response to the Notice of Intention to Consider Cancelling his visa, the delegate of the department formed a view that the applicant was working in breach of condition 8105 of his student visa and proceeded to cancel his visa.

10. The applicant has provided the Tribunal with a number of documents to support his claim that he has never worked for longer than 40 hours a fortnight during the relevant times. The applicant has also provided a letter from a director of the company for whom he was working stating that according to their business records the applicant did not work for more than 40 hours a fortnight. The Tribunal gives this evidence significant weight.

11. The applicant has also provided copies of his payslips, bank account statements, letters from his colleges verifying that the applicant has completed his courses and received his diplomas. These documents, along with the applicant oral evidence during the hearing have satisfied the Tribunal that the applicant worked in accordance with his visa conditions. For example his pay deposits are recorded weekly during the holidays and fortnightly at other times.

12. The applicant commenced his studies in Melbourne on 24 July 2017 and transferred to the Brisbane campus on 15 January 2018. He is enrolled in a Certificate III in Business which he is due to complete this year. The applicant told the Tribunal that his current student visa ceases in March 2019. A letter from the applicant’s college states that they do not keep detailed records of attendance but only track the performance of their students. The applicant’s progress since he arrived in Brisbane is noted as being “modest”.

13. During the hearing the applicant told the Tribunal that most of his study is conducted online and he attends campus once or twice a week depending upon requirements. Otherwise he works on Saturday at his partner’s dance studio operating a small café for the parents. He claims that he earns around $150 for the day’s work.

14. The applicant told the Tribunal that he and his partner Lauren met in Melbourne in 2016 and the reason he left Melbourne to live in Queensland was to follow her here. He said that his relationship with her was more important to him than the café, which the owners subsequently sold after his departure. He and Lauren have registered their relationship in September 2018 and hope to build a life together.

15. The applicant’s PRSIM records indicated that the has completed all of the courses in which he has enrolled. Whilst the tribunal understands that completion of a course does not mitigate the breach of a visa condition, the Tribunal gives this aspect of the applicant’s record significant weight.

16. The applicant gave a detailed account of the confusion and fear he experienced when five border force officers entered the café and demanded to speak to him. He said that they did not identify themselves at first and one officer was armed. The applicant said he was scared and confused and strongly believes that this, along with his modest English language skills contributed to a misunderstanding wherein the delegate formed a view that the applicant was working fulltime. The Tribunal accepts this evidence and taken in the context of the evidence provided above, the Tribunal is not satisfied that the applicant’s visa should have been cancelled.

    Does the ground for cancellation exist?

17. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

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

    DECISION

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Ann Duffield
    Senior Member