DROGUETT FREDES (Migration)

[2018] AATA 2390

DROGUETT FREDES (Migration) [2018] AATA 2390 (2 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Felipe Andres DROGUETT FREDES

CASE NUMBER:  1727893

HOME AFFAIRS REFERENCE(S):           BCC2017/2939218

MEMBER:Susan Trotter

DATE:2 July 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 572 Vocational Education and Training Sector visa.

Statement made on 02 July 2018 at 4:10pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 572 (Vocational Education and Training Sector) – Registered course enrolment – Gap in study – Two month leave – Death in the family – Commenced course later than expected – Continued study in Australia consistent with the purpose of the visa – Decision under review set aside and substituted

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140, 189

Migration Regulations 1994 (Cth), Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 November 2017 made by a delegate of the then Minister for Immigration and Border Protection[1] (the Minister) 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).

   [1] Now the Minister for Home Affairs

2. The applicant is a 21 year old citizen of Chile. He first arrived in Australia in April 2015 as the holder of a Subclass 570 (Independent English Language Intensive Course for Overseas Students) visa. On 5 January 2016, he was granted the Subclass 572 visa, the subject of this application, with a cease date of 15 March 2018.

3. On 3 October 2017, a Notice of Intention to Consider Cancellation (NOICC) was forwarded to the applicant, to which no response was given by the applicant.

4. On 3 November 2017, the visa was cancelled under s.116(1)(b) of the Act on the basis that the applicant had not complied with a condition of the visa, specifically condition 8202, which required the applicant to be enrolled in a registered course of study. Further, the delegate was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 12 November 2017.

6. The applicant appeared before the Tribunal on 17 May 2018 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent.

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

   ISSUES

9. Under s.116 of the Act, the Minister may cancel a visa if 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) that the visa holder has not complied with a condition of the visa.

10. In this instance, condition 8202 was attached to the applicant’s visa.

11. Condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations), 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).

12. 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.

13. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances, including but not limited to matters identified in the Procedures Advice Manual (PAM3) of the now Department of Home Affairs (the Department), ‘General visa cancellation powers’, including:

    (a)  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;

    (b)  The extent of compliance with visa conditions;

    (c)  Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members;

    (d)  Circumstances in which the ground for cancellation arose. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;

    (e)  Past and present conduct of the visa holder towards the Department;

    (f)    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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;

    (g) Whether there would be consequential cancellations under s.140 of the Act;

    (h)  Whether any international obligations would be breached as a result of the cancellation; and

    (i)    Any other relevant matters.

14. It follows that the issues to be determined by the Tribunal are:

    (a)  Does the ground for cancellation exist?; and, if so

    (b)  Should the discretion to cancel the visa be exercised?

    CONSIDERATION

15. The applicant’s evidence at hearing included the following:

    (a)  He was born in Chile and finished high school and came straight to Australia on 25 April 2016.

    (b)  All of his family are in Chile; his mother, father and one sibling, an older brother. His older brother has just finished civil engineering. His mother works as a chef. His father works at a cell phone company.

    (c)  He wanted to come to Australia to improve his English. He did five months of English. He then found some work and completed a Certificate III in Commercial Cookery. He then completed a Certificate IV in Commercial Cookery and is now studying a Diploma of Hospitality Management, which is due to be completed in July 2018. He is planning to start an Advanced Diploma of Hospitality in August 2018 and he then wants to go home. If all goes to plan that last qualification will take about six months and he will return home after that.

    (d)  He took two months’ leave from study after his grandfather passed away and experienced an issue in relation to one of his tuition payments prior to commencing his Certificate IV in Commercial Cookery in April 2017. He made a payment to the school on 20 April 2017 but they did not realise the payment was from him. The school apparently tried to contact him but he did not receive any correspondence from them. He ended up enrolling in the course three days late but has otherwise been enrolled at all times.

    (e)  He has been studying throughout the whole period that the Department thought he was not. He did not know that there was any issue with the Confirmation of Enrolment until he received the Notice. When he received the Notice from the Department, he went to the school and everything was fixed up and he did not realise he had to respond to the Department. He thought the school would automatically communicate to the Department.

    (f)    He referred the Tribunal to the email from the school dated 10 November 2017, including where it is stated as follows:

    We have been in contact with PRIMS and have been advised that we can process the CoE for him now for the Cert IV in Comemr4cial coursed [sic] which started on 10/04/2017 and ended on the 29/09/2017.

    …

    The student made a payment and commenced the course (Cert IV in Commercial Cookery) on the 13/04/2017. This course ended on the 29/09/2017. The CoE was pending being processed as we were waiting for payment to be made. Due to the payment received in April not being communicated to the CoE team, the CoE was not processed, however the student did show they were a genuine student.

    Issue 1 - Does the ground for cancellation exist?

16. The Tribunal accepts that there was an issue that arose between the applicant and his educational institution resulting in his enrolment in a Certificate IV in Commercial Cookery not being correctly registered with the Provider Registration and International Student Management System (PRISMS) until it was retrospectively recorded in November 2017.

17. However, the evidence, even after retrospective correction, shows that the applicant was nonetheless not enrolled in a registered course of study from 24 February 2017 until 10 April 2017, such that the applicant was in breach of condition 8202(2)(a) and the Tribunal finds accordingly.

18. It follows that the Tribunal finds that there is a ground for cancelling the applicant’s visa under s.116(1)(b) of the Act. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Issue 2 - Should the discretion to cancel the visa be exercised having regard to all the relevant circumstances?

19. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in PAM3, ‘General visa cancellation powers’ as referred to earlier in these Reasons.

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

20. The purpose of the visa granted to the applicant was for the applicant as a non-citizen to undertake study in Australia.

21. There is no evidence that the applicant’s travel to and stay in Australia was for anything other than study. The evidence shows that the applicant has completed a number of courses of study whilst in Australia and is currently undertaking a Diploma of Hospitality Management.

22. The Tribunal is satisfied that the purpose of the applicant’s travel and stay in Australia is to study and that his actions have, generally speaking, been consistent with that purpose, which the Tribunal considers weighs against exercising the discretion to cancel the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members

23. The Tribunal accepts that hardship may be caused to the applicant and his family should the visa be cancelled in that he has invested considerable time and money towards his study goals in Australia. The Tribunal places some weight on this factor in the applicant’s favour.

    Circumstances in which ground of cancellation arose. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

24. The Tribunal is satisfied that the applicant took two months’ leave from his studies on account of his grandfather’s death and that due to communication difficulties with his educational institution, he commenced the relevant course, a Certificate IV in Commercial Cookery later than expected. It appears some of these issues may have been related to the applicant not keeping his educational institution adequately advised of his contact details such that the applicant’s actions may have contributed to the circumstances in which the ground of cancellation arose. However, overall, the Tribunal is satisfied that there have not been significant actions or oversights by the applicant that contributed to the ground of cancellation arising and places some weight on this in the applicant’s favour.

    Past and present conduct of the visa holder towards the Department

25. There is no evidence that the applicant had been uncooperative towards the Department other than not responding to the NOICC. Although naïve and ill-judged, the Tribunal accepts that having communicated with his educational institution to have the enrolment issue corrected, the applicant assumed that the educational institution would pass on the corrected information in relation to his enrolment to the Department. In these circumstances, the Tribunal places no adverse weight upon the non-response to the NOICC against the applicant.

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

26. If the applicant’s visa is cancelled, he could become an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. He would have limited options to apply for any other visas in Australia. He could also be subject to a three-year exclusion period unless he meets the relevant public interest criteria. However, these are intended legislative consequences of cancellation and they are consistent with the objectives of the migration program. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the discretion to cancel the visa should not be exercised.

    Whether there would be consequential cancellations under s.140

27. There is no evidence that there would be consequential cancellations in this case.

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

28. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Any other relevant matters

29. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

    Conclusion

30. The Tribunal placed considerable weight on the short period of non-enrolment, the now known circumstances of the extended period of non-enrolment (at the time of the Department’s decision) having been by mistake which has been retrospectively corrected, and the applicant’s continued study in Australia consistent with the purpose of the visa, in the applicant’s favour. On balance and considering the circumstances as a whole, the Tribunal concludes that the discretion to cancel the visa should not be exercised.

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Susan Trotter
    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.