Contardo Fuentes (Migration)

[2019] AATA 6748

Contardo Fuentes (Migration) [2019] AATA 6748 (1 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jose Luis Contardo Fuentes

CASE NUMBER:  1716360

HOME AFFAIRS REFERENCE(S):          BCC2017/1998328

MEMBER:Mark Bishop

DATE:1 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 October 2019 at 9:49am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – alleged fraud of education agent – responsibility of visa holder – failure to take reasonable steps –  lengthy period of non-enrolment – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 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 applicant appeared before the Tribunal on 1 October 2019.  

3. The applicant provided a copy of the decision record to the Tribunal.

4. The applicant was assisted by his migration agent. The hearing was conducted with the assistance of an interpreter in the English and Spanish languages.

5. The applicant provided a Statement to the Tribunal. It is summarised below.

6. 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

7. 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?

8. 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).

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

10. The Department provided the applicant with a NOICC. The applicant responded to the NOICC in writing. He agreed there were reasons for cancellation. He provided reasons why the visa should not be cancelled. Those reasons are summarised below:

    ·Upon notification of the NOICC he immediately changed schools to ensure that his enrolment was completed with the visa condition so as not to be in breach;

    ·He completed a number of courses and intends to continue studying in Australia in a Diploma of Project Management. The delegate made a finding the applicant did not hold current or future enrolment in a CRICOS registered course with an education provider in Australia. The delegate stated the applicant had remained onshore without studying since he completed his studies in a Diploma of Business on 9 December 2016;

    ·He did not intend to cheat the system;

    ·He lives with relations and they have been providing him with support;

    ·He does not want to fail them because all of the hard work they have put in.

11. The applicant provided a written submission dated 23 August 2017. It outlined the following:

    ·He provided a chronology of events;

    ·He arrived in Australia on 31 May 2012 as the holder of a tourist visa. On 21 November 2013 he applied for a 572 student visa;

    ·In early February 2017 the applicant was informed by his education provider his intended course was not ready to start;

    ·On 10 July 2017 the Department issued a NOICC. On 17 July 2017 the applicant started a course in Project Management. On 19 July 2017 the Department cancelled the applicant’s visa;

    ·The applicant agreed he had not been enrolled in a course.

    ·The applicant alleged corrupt behaviour on the part of his education provider;

    ·There is no evidence to suggest the applicant did not comply with visa conditions in the past. The applicant failed to comply with condition 8202 because of events outside his control relating to alleged corrupt behaviour on the part of his education provider and lack of notice.

12. The applicant made a further written submission dated 27 September 2019. It provided the following:

    ·There appeared to be a breach of condition 8202(2)(a);

    ·The applicant first came to Australia on 31 May 2012. On 21 November 2013 he applied for a 572 student visa. This visa was granted on 27 November 2013. On 9 December 2016 the applicant completed a Diploma of Business; 

    ·On 10 July 2017 the Department issued a NOICC. On 11 July the applicant advises he intends to enrol in another course. On 17 July 2017 the applicant thinks he is enrolled in a Diploma of Project Management scheduled to conclude 22 June 2018;

    ·On two occasions in February and April 2017 the education provider advises him the course is not ready to commence. The education provider advises the applicant that all correspondence relating to the course was sent to his education agent, a Mr Perea. The education agent denied receiving any correspondence. On 19 July 2017 a decision is made to cancel the visa;

    ·The applicant claims he provided funds to his education agent to facilitate his enrolment in a course in Office Management at Quack Study trading as Ocitap. The applicant advises it is unsure what happened to these funds. After approaching his education provider, Quack Study, his funds were released to SELC College. After his visa was cancelled the applicant enrolled in a Diploma of Project Management. The applicant completed this course;

    ·Mr Perea, the applicant’s former education agent was charged with dishonesty and found guilty on 10 charges;

    ·The applicant asserts his commitment to study has been exemplary since arrival in Australia and the only interruption to his studies was by the Department of Home Affairs. The only non-compliance was by the education provider;

    ·The applicant did not lose any funds. His former education agent is responsible for errors relating to enrolment;

    ·The applicant intends to apply for a partner visa.

13. In evidence the applicant advised the Tribunal he had not been enrolled in a course of study from December 2016 until July 2017. In February and April he approached the school to establish the status of enrolment. The education provider advised him the course was not ready to commence. The applicant advised the Tribunal he had not applied for a partner visa and it might be a consideration in the future. He completed his course in Project Management in July 2018. Since that time he has been working part time in Sydney. He has not studied since July 2018.

14. The delegate made a finding based on PRISMS that the applicant had not been enrolled in since 9 December 2016.

15. Based on the information before outlined above the Tribunal is satisfied the applicant did not comply with his visa condition 8202 by not maintaining enrolment in a registered course of study. The Tribunal is satisfied that there is a ground for cancellation of the applicant’s visa under s116(1)(b) of the Act.

16. 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

17. 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

18. 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

19. The applicant provided a written submission. It is outlined above in paragraph 10.

20. He came to Australia as the holder of a tourist visa. After a period of residence he was granted a TU 572 student visa. He maintained residence in Australia as the holder of such visa and after his visa was cancelled as the holder of a Bridging visa. He completed five courses prior to December 2016. He was not enrolled in a registered course of study after that date until a later enrolment in July 2017 around the time of the cancellation of his student visa. Subsequent to receipt of a NOICC he enrolled in a Diploma of Project Management. He claims his breach of condition 8202 was unintentional and due to factors outside his control. In a later written submission dated 27 September 2019 the applicant identified those factors outside of his control. They relate to errors of enrolment or delays in enrolment that were due to his former education agent a Mr Perea. See paragraph 11 above.  The applicant has been the holder of two student visas since his arrival in Australia and the delegate made the observation he should be familiar with conditions attached to his visa. Non-enrolment in a course of study is a serious matter. Non-attendance at courses of study is a serious matter. The applicant was not enrolled in a course of study from December 2016. The applicant was aware his courses were not progressing or even commencing because on two separate occasions his education provider advised him of that fact.

21. The obligation is upon the holder of a student visa to ensure compliance with conditions attached to visas at all times. In evidence the applicant advised he did not contact the Department in the period December 2016 until July 2017. The applicant had in the seven month period prior to July 2017 many opportunities to enrol in alternate courses, seek out alternate education providers, obtain confirmation of enrolment in an alternate course, attempt to resolve apparent enrolment errors with his education agent or contact the Department and seek their advice or assistance. In evidence the applicant advised the Tribunal he did not attempt to contact the Department in the period December 2016 until July 2017.

22. The Tribunal gives these considerations a little weight in favour of the applicant. However they do not outweigh the seriousness of the breach of a visa condition.

    The extent of compliance with visa conditions

23. The applicant did not comply with condition 8202 attached to his visa after his failed to enrol in December 2016. The Tribunal has considered the submission of the applicant as summarised at paragraphs 9, 10 and 11 above. The Tribunal has considered the submission of the applicant as to ‘information outside [his] control’.  The Tribunal has considered the written submission and supporting documentation dated 27 September 2019 as to allegations of fraud on the part of his former education agent. The Tribunal has considered the evidence of the applicant’s friend Ms Valeria Montiel Fosodo. She advised the Tribunal she was a marketing manager at the English Language Company. This company had a short term business relationship of 3 months with Quack Study trading as Ocitap from November 2017 until early 2018.  She advised the Tribunal she was familiar with a large number of incidents of alleged fraud on the part of the applicant’s former education agent and students from various South American countries. She advised the Tribunal she had no direct or firsthand knowledge of matters raised by the applicant in the period December 2016 until July 2017.

24. There is no evidence before the Tribunal the applicant sought enrolment in an alternate course or alternate education provider after his then preferred education provider informed him course commencement was delayed. The Tribunal notes the applicant was able to enrol in an alternate course two days after receipt of his NOICC. The Tribunal gives this consideration minimal weight in favour of the applicant.

25. The Tribunal has carefully considered the information relating to acts and circumstances beyond the control of the applicant. This relates to allegations of repeated fraud as does the evidence of Ms Valeria Montiel Fosodo. There is no reason for the Tribunal not to accept the veracity of this evidence. However the applicant advised the Tribunal he had been aware his course of study did not proceed after the summer break in February 2017. He was aware of this because he gave evidence the education provider advised him of this on two occasions. He was also aware of this because he was not attending his education provider for study purposes in this period. He did not advise of any approaches to alternate education providers or of seeking to enrol in alternate courses and hence obtain a Confirmation of Enrolment. He did advise the Tribunal he did not suffer any loss and was not the subject of fraud as monies paid for his enrolment were forwarded to his new education provider after enrolment in July 2017. It appears to the Tribunal the lengthy period of non-enrolment and consequent breach of condition 8202 were occasioned largely by the applicant’s own actions and inaction after February 2017 when he first became aware his chosen course would not proceed. At that time the applicant should have sought alternate enrolment in a registered course of study. The Tribunal gives this consideration minimal 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 minimal 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. If the applicant’s TU-572 Vocational Education and Training Sector student visa is cancelled, the following will occur:

    ·The applicant will become an unlawful non-citizen/s and liable to detention under s189 and removal under s198 of the Migration Act 1958 if he does not voluntarily depart Australia.

    ·Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia, so he may be required to depart Australia.

    ·The applicant will incur a penalty in that he will be subject to a three (3) year exclusion period, where he may not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Requirements 4013 to be met.

    ·If the applicant is enrolled in a registered course he will be unable to complete his educational qualification in Australia on this occasion.

28. The Tribunal has considered the applicant’s response to the NOICC of hardship to relatives on account of the work they have undertaken. The Tribunal give s this minimal weight in favour of the applicant because

    ·These are the intended consequences of the legislation when a visa is cancelled under these grounds. It reflects the seriousness with which the Department takes this type of cancellation ground.

    ·There is only limited evidence before the Tribunal that there are any family members in Australia who will be negatively impacted by the cancellation of the applicant’s visa.

    ·The Tribunal accepts departing Australia may involve some emotional and financial hardship to the applicant. If the applicant has to depart Australia, he may be returning to his home country with which he is familiar and where he has ties.

    ·While the Tribunal acknowledges that this will be a difficult event to go through, the circumstance of having to return to his home country after a number of years spent in Australia on a temporary visa is not a unique or exceptional one. The Tribunal does not accept that he would not be able to re-establish himself in Chile.

    ·In response to the NOICC the applicant claims that he intends to continue studying in Australia and he has provided evidence of this. He advised the Department he would pursue study in Project Management. In evidence he advised the Tribunal he completed this Diploma in July 2018 and had not studied since that time. He had instead worked part time in Sydney. If the Tribunal decides to cancel the visa, the applicant will incur a penalty that may prevent him from being able to meet Public Interest Criteria 4013 for a period of three years in relation to any subsequent temporary visa applications.

    ·The applicant has continued his study in Project Management and advised the Tribunal he had completed this course. He may not be able to continue his studies in Australia for a period of three years in the future. He advised the Tribunal he intended to apply for a partner visa. In evidence to the Tribunal he advised he was not intending to apply for a partner visa at this time. It might be a consideration in the future. However the Tribunal does not regard this as significant hardship due to the extent of the non-compliance.

    Circumstances in which ground of cancellation arose

29. The delegate made a finding the applicant was not enrolled in a registered course of study from December 2016 for a period of almost 8 months. The applicant enrolled in a registered course of study after the issue of the NOICC. Obtaining further enrolment after being issued a NOICC does not negate the fact that the applicant did not comply with condition 8202(2).

30. It was the responsibility of the applicant to contact the Department before he takes any action to significantly change his circumstances (such as ceasing studies without obtaining alternative enrolment or not commencing further studies) and to clarify any consequences that may result from such a change. The delegate made a finding that according to departmental records at no time did the applicant attempt to contact the Department to advice of his circumstances or seek clarification on these matters. In evidence to the Tribunal the applicant advised he did not attempt to contact the Department in the period December 2016 until July 2017.

31. There is some information to suggest that the circumstances in which the ground for cancellation arose were outside of the applicant’s control. However these circumstances relating to fraud have to be seen in the context that the applicant was aware his course of study did not commence in February 2017 and did not take steps at that stage or at a later stage to ameliorate that situation. The Tribunal does not accept that the circumstances that led to him not enrolling in further studies after he was granted the visa and not complying with his visa condition by not maintaining enrolment in a registered course were due to circumstances that were entirely beyond his control.

1. The Tribunal considers that he was aware of these circumstances and failed to contact the Department to advice of his circumstances or seek clarification on these matters. Instead the applicant continued to remain in Australia and did not comply with his student visa condition.

2. The Tribunal gives these circumstances some weight in favour of the applicant.

3. 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 minimal weight to the fact that there appears to be no additional breaches.

   Past and present behaviour of the visa holder towards the department

4. 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

5. See paragraphs 27 and 28 above.

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.

7. Whilst his failure to depart Australia may ultimately result in detention or removal action, it is not necessarily a consequence of the cancellation decision. These are the intended consequences of the legislation when a visa is cancelled under these grounds.

8. It reflects the seriousness with which the Tribunal takes with this type of cancellation ground.

   Whether there would be consequential cancellations under s.140

9. 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

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

11. Any other relevant matters

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-573 visa  and that a breach of almost twelve 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 573 Higher Education 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.