Echavarria Jaramillo (Migration)

[2024] AATA 3086

Echavarria Jaramillo (Migration) [2024] AATA 3086 (13 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Katherine Echavarria Jaramillo

REPRESENTATIVE:  Mr Harris Lawrence (MARN: 2217720)

CASE NUMBER:  2307272

HOME AFFAIRS REFERENCE(S):          BCC2023/456002

MEMBER:Christine Kannis

DATE:13 August 2024

PLACE OF DECISION:  Perth

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

Statement made on 13 August 2024 at 7:38am

CATCHWORDS
MIGRATION – cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – breached condition 8202 – applicant had not been enrolled in a registered course of study –unsatisfactory course progress – no compelling need to for the applicant to remain in Australia – COVID had affected applicant’s ability to enrol and study – breach did not occur in circumstances beyond the applicant’s control – decision under review affirmed

LEGISLATION 
Education Services for Overseas Students Act 2000 (ESOS Act), s 19
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8

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 16 May 2023 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 delegate cancelled the visa on the basis that the applicant failed to comply with a condition of her visa. 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. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal by MS Teams on 30 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

5. The applicant was represented in relation to the review. The applicant’s representative did not attend the hearing.

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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

   Request for postponement of hearing

8. On 25 June 2024, the Tribunal sent the applicant (via her representative) an Invitation to Attend a Hearing  on 31 July 2024 at 11.00 am (NSW time). The Invitation included the following information:

   What if I cannot attend the scheduled hearing?

   If you are not able to attend the scheduled hearing, or you would prefer that the hearing take place in a different way (e.g. at an AAT office instead of by video or telephone), you must advise us of this as soon as possible. Please note that we will only make changes if we are satisfied that it is reasonable and there are good

   reasons for doing so.

   ….

   If you seek to adjourn your hearing for a medical reason, you must provide a

   doctor’s certificate that states you are not able to attend the scheduled hearing. If you cannot provide a medical certificate you must provide a convincing reason for this. The Member will consider the request and advise you of the outcome. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
   If you are seeking more time to present information after the hearing you should advise the Member at the hearing and provide strong reasons.

9. On 4 July 2024, the Tribunal sent the applicant (via her representative) the following email:

   I am writing in relation to an application for review by the Migration and Refugee Division of the AAT. On 25 June 2024 the Administrative Appeals Tribunal (AAT) sent you an invitation to attend a hearing on 30 July 2024.
   This invitation included a Hearing Response form for your completion, to be returned to us within 7 days. To date, we have not received the Hearing Response form or any accompanying submissions.
   The Tribunal requires that the Hearing Response form is submitted to us immediately.

   If you have any questions please contact us at [email protected], or call 1800 228 333.

10. On 10 July 2024, the applicant’s representative responded to the email dated 4 July 2024 and advised the Tribunal as follows:

    I have forwarded this correspondence to my client and have reiterated the importance of this document, but to date I have not received a reply regarding the Hearing Response form.

11. On 10 July 2024, the Tribunal sent the applicant’s the following email:

    Thank you for your email received 10 July 2024.

    Could you please provide details of how you have tried to contact the review applicant (including method and date)?

    Please confirm the contact details that you have on file for the applicant.

    Finally, please confirm whether you have not received a response from the review applicant at all in relation to any issue/correspondence, or whether you have been able to communicate with the review applicant but she just hasn’t respond regarding the hearing response form.

12. On 10 July 2024, the applicant’s representative responded to the email dated 10 July 2024 and advised the Tribunal as follows:

    I have contacted the applicant via email, and when I received no response I contacted her via the messenger platform she initially used when seeking information regarding her migration situation. She has confirmed receipt of the AAT correspondence but to date has not provided me with the ‘Response to hearing invitation’ form or further instructions. The email I have for Ms Echavarria is [email protected]

13. On 29 July 2024, at  3.00 pm (NSW time), the applicant’s representative sent the following email to the Tribunal:

    I am writing to you regarding 2307272 - Mrs Katherine Echavarria Jaramillo, she has her hearing programmed for tomorrow. I have repeatedly tried to contact my client but was only able to get a clear response today, my client has indicated that she has been suffering from a severe level of stress due to this matter and has been unable to give instructions regarding her hearing. For this reason I would like to kindly request an adjournment for her hearing, given that as her representative I have been unable to prepare any submission or even complete the hearing response form due to my clients inability to act due to stress.

    I appreciate that this is entirely last minute, however even a few days or a couple of weeks will allow my client to focus and prepare for her hearing.

14. The Tribunal declined to postpone the hearing. In making this decision the Tribunal took into account the absence of any medical evidence regarding the severity of the stress referred to in the request for postponement, the absence of any medical evidence regarding the applicant’s inability to participate in the hearing on 30 July 2024; that the Invitation to Attend a Hearing was sent 5 weeks prior to the hearing, that a reminder email was sent on 4 July 2024 and that the request to postpone the hearing was received at 3.00 pm (NSW time) of the afternoon before the hearing listed at 11.00 am (NSW time) on the following morning.

15. The Tribunal accepts that the applicant experienced stress regarding the scheduled hearing however in the Tribunal’s view it is uncommon for an applicant to be anxious prior to a hearing and as noted, there was no medical evidence regarding the applicant’s stress or any inability to participate in the hearing.    

    Did the applicant comply with Condition 8202?

16. On 10 February 2021, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

17. 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).

18. 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.

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

20. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]

    [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).

    [2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.

21. The information from PRISMS shows that the applicant was not enrolled in a registered course from 22 September 2021. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 22 September 2021 and the Tribunal finds that she breached condition8202(2)(a) of her visa.

22. 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

23. 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’, as set out below.

24. On 17 April 2023, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course from 22 September 2021 and had therefore failed to comply with condition 8202(2)(a) of her visa.

    Response to NOICC

25. On 3 May 2023, the applicant responded to the NOICC and provided the following information via her migration agent:

    ·The applicant was granted a Student visa on 10 February 2021 and commenced studies in Human Resources.

    ·The purpose of the applicant’s travel to Australia was to study the course in Human Resources and return to her immediate family in Columbia.

    ·The applicant first arrived in Australia on 15 November 2019 to undertake her studies. She then applied for a further student visa in October 2020.

    ·The applicant has family members in Australia that include her father and half siblings who are Australian citizens. She has a half sister who is autistic and with whom she has an established bond. If the applicant’s visa is cancelled her sister will be subject to emotional loss.

    ·The applicant’s course was not delivered face-to-face as initially advertised by the college but by distance education due to the COVID-19 lockdown. She was affected by the impact of COVID-19 on Australian society and subsequent lockdowns.

    ·COVID-19 and the lockdown had a negative impact on people living in Australia and the applicant was no exception. Having reacted the way she did with her studies and which led to the present situation with the Department, she deeply regrets her actions and gives her commitment to study continuously and requests the Department accept her sincere apologies. She has a letter of offer from Berkeley Business Institute of Australia showing her commitment to her studies.

    ·The applicant has always complied with and behaved in a satisfactory method towards the Department.

    ·The applicant is a genuine temporary entrant to Australia.

26. At the time of responding to the NOICC the applicant provided a Conditional Letter of Offer and Statement of Fees from Berkeley Business Institute dated 21 April 2023 for her to study a Diploma of Leadership and Management from 8 May 2023 to 4 May 2025.

    Evidence provided at hearing

27. The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of her enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from her PRISMS enrolment record, she was enrolled in the following courses of study:

    a.She was enrolled in an English Language Programs for International Students which was cancelled  on 19 April 2020 due to Change to a course in the same sector; gap created at either start or end of course OR the study period of the new CoE is shorter than the original;

    b.She was enrolled in a General English Program which she finished on 9 October 2020;

    c.She was enrolled in a Diploma of Human Resources Management which was cancelled on 9 July 2021 due to Change to student enrolment;

    d.She was enrolled in an Advanced Diploma of Management (Human Resources) which was cancelled on 9 July 2021 due Change to student enrolment;

    e.She was enrolled in a Certificate IV in Human Resources which was cancelled on 22 September 2021 due to Unsatisfactory course progress;

    f.She was enrolled in a Diploma of Human Resources Management which was cancelled on 22 September 2021 due to Non-commencement of studies; and

    g.She was enrolled in an Advanced Diploma of Management (Human Resources) which was cancelled on 22 September 2021 due to Non-commencement of studies.

28. The Tribunal explained to the applicant that this information was relevant because it indicates that from 22 September 2021 she did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether she breached the conditions of her student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the Student visa, including in considering her purpose for remaining in Australia.

29. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on and asked her whether she had any comments in relation to her PRISMS enrolment record. The applicant told the Tribunal she agreed with her PRISMS enrolment record with the exception of the enrolments in the English Language Programs for International Students and General English Program courses, She said these courses were part of her Human Resources course. The Tribunal attempted to clarify these enrolments with the applicant however she maintained her position. Given that these enrolments are not recorded during the period she ceased to be enrolled in a course, the Tribunal places no weight on these enrolments.

30. The Tribunal asked the applicant about her statements in the NOICC response regarding her father, half-siblings and autistic sister. In response she said she came to Australia with the initial objective of being with her family. She said she had not seen her father in many years and had not met her sisters. The applicant said during COVID-19 they all spent time together and became close. In relation to her 15 year old autistic sister, the applicant said she helps her be more active and gave examples of chatting with her and going to the movies together.

31. The Tribunal asked the applicant about the statement in the NOICC response about the impact of COVID-19 on her. She said she suffers from anxiety and panic attacks and during COVID-19 her anxiety about her family in Columbia increased and so she tried to help them. She said at this time her focus shifted from study to work. She said in 2020 she worked two jobs up until November 2020. She then commenced working for a government department cleaning the homes of elderly people and worked in this employment for 24 hours per week up until September 2021. She then she commenced working packaging pasta and worked in that employment for 40 hours per week up until October 2022. She then commenced working in package delivery and worked in that employment 40 hours per week until October 2023. The applicant told the Tribunal that she always worked during COVID-19.

32. The Tribunal asked the applicant about the statement in the NOICC response that the course she was studying was not delivered face-to-face as initially advertised by the college but rather by distance education due to COVID-19 lockdown. The applicant told the Tribunal that she preferred attending classes in person.

33. The Tribunal asked the applicant about the cancellation of her enrolment in a Certificate IV in Human Resources course which was cancelled on 22 September 2021 due to unsatisfactory course progress. In response the applicant told the Tribunal that she was very unmotivated in the course.

34. The Tribunal put to the applicant that she would have known from 22 September 2021 that she was no longer enrolled in a course and was not abiding by the conditions of her visa. In response, the applicant conceded that she was aware of her non-compliance. The Tribunal asked her whether she contacted the Department about her visa status. In response she said she was not notified of the cancellation of enrolment by her education provider and didn’t know she had to contact the Department. The Tribunal asked the applicant whether she discussed a deferment of her study with her education provider. In response she said she was not motivated to attend her course and it was her mistake to not have contacted the education provider. When asked whether she contacted a migration agent to discuss alternative study the applicant said she contacted the agency who organised her Student visa to see what other courses were available but the agency did not tell her anything or do anything.

35. Noting that PRISMS shows she was not enrolled in any course throughout the whole of 2022, the Tribunal asked the applicant the reason she did contact the Department in 2022.  In response she said not notifying the Department was her mistake but she did not like the course she had been studying.

36. The Tribunal referred the applicant to the Conditional Letter of Offer and Statement of Fees from Berkeley Business Institute dated 21 April 2023 provided at the time of responding to the NOICC and asked the reason she obtained the letter 4 days after the NOICC. The applicant said she was shocked to receive the NOICC and realised she had to do something. The Tribunal pointed out that was in Australia on a student visa and at the time of the NOICC she had not studied for more than 18 months and asked her why she was shocked that her student visa may be cancelled. In response the applicant said she knew the Department would be able to do something but her initial reaction was still one of shock.

1. When asked about the purpose of her travel to Australia, the applicant told the Tribunal that her initial objective in travelling to Australia was to spend time with her family. She said she had not seen her father for 30 years and had never spent time with her sisters. The applicant said her father had offered to fund her travel for 1 year so she could study English and thereafter he would try and add her to his visa. In response to the Tribunal asking whether she has a compelling need to remain in Australia, the applicant said her only motivation to remain in Australia is to be with her family and her sisters who she did not know. She then said she would also like to make the best of her time in Australia and study if it is possible.

2. When asked about the hardship that may be caused by cancellation of the visa, the applicant said she and her family will be sad if her visa is cancelled. 

3. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

   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

4. The purpose of the applicant’s visa was to enable her to study. The applicant was not enrolled in a course of study for a period of 1 year 7 months prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because  she was not engaging in the study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia.

5. There is no specific definition of 'compelling' in either the Act or the Regulations. To be ‘compelling’, the reasons in question must force or drive the decision-maker irresistibly to some end.[3]  

   [3] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].

6. The Tribunal questioned the applicant as to whether there was a compelling need for her to remain in Australia. In response, the applicant said her only motivation to remain in Australia is to be with her family. She also said she would like to make the best of her time and study in Australia. The Tribunal accepts that the applicant wishes to remain in Australia to be with family and perhaps study does not consider this constitutes a compelling need to remain in Australia.

7. The applicant’s non-engagement in the study for which his visa was granted for an extended period of 1 year 7 months, and the absence of compelling reasons for her to remain in Australia, weighs in favour of visa cancellation.

   The extent of compliance with visa conditions

8. The applicant has not complied with condition 8202 of her student visa because she has failed to maintain enrolment in a full-time registered course of study from 22 September 2021. The requirement to maintain enrolment is a fundamental condition for the grant of a Student (Subclass 500) visa. There is no evidence before the Tribunal that she has not complied with the other conditions attached to her visa.

9. The applicant’s non-compliance for a period of 1 year 7 months from cancellation of her enrolment until the issuing of the NOICC weighs in favour of visa cancellation.

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

10. The Tribunal accepts that the cancellation of the applicant’s visa will cause her and her family to be sad.

11. The Tribunal gives the hardship that may be caused to the applicant some weight against cancellation.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

12. The applicant’s visa was cancelled as a result of her failure to maintain enrolment. The applicant was not enrolled in a course for 1 year 7 months prior to the issuing of the NOICC.   The applicant told the Tribunal that she was not motivated to study and during the pandemic her focus shifted from study to work.

13. The Tribunal put to the applicant that she would have known from 22 September 2021 that she was no longer enrolled in a course and was not abiding by the conditions of her visa. She did not dispute that she was aware of her non-enrolment but said her education provider did not notify her of the cancellation of her CoE and so she did not contact the Department. In the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa, to notify the Department of changes in their circumstances that affect their visa and remain compliant with visa conditions. In the present case the applicant became aware,  from 21 September 2021 that she was not compliant with her visa conditions and she did not seek to regulate her visa status.  

14. The applicant told the Tribunal that she suffers from anxiety and panic attacks. She said these symptoms increased during the pandemic because she was worried about her family in Columbia.  There was no medical evidence regarding the nature or severity of the applicant’s claimed conditions and she did not contend that they caused her to cease study. Her main reasons for ceasing study appeared to be because she was not motivated to study the course and because she wanted to work to help her family in Columbia. The applicant’s evidence was that during the period of non-enrolment she continued her employment and increased her hours of employment. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a Student visa holder.

15. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because she ceased to be enrolled in a registered course from 22 September 2021. She referred to her preference for in person classes, her lack of motivation to study the course in which she was enrolled and her desire to work, which she continued during the period of non-compliance. The Tribunal finds the applicant’s non-compliance with the visa condition was not due to circumstances beyond her control and there are no extenuating or compassionate circumstances and this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the Department

16. There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.

    Whether there would be consequential cancellations under s 140

17. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

    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

18. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.

    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

19. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.

    Any other relevant matters

20. The Tribunal is not aware of any other considerations in relation to the cancellation.

    Conclusion

21. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of her visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of her travel to and stay in Australia as she was not undertaking the study for which her visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

22. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    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.