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

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).
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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
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.
The applicant was represented in relation to the review. The applicant’s representative did not attend the hearing.
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
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
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Echavarria Jaramillo (Migration)

Details

AGLC: Echavarria Jaramillo (Migration) [2024] AATA 3086
Case: [2024] AATA 3086
Decision Date: 13 August 2024

CaseChat Overview and Summary

This matter concerned the review of a decision by the Department of Home Affairs to cancel the Student (Temporary) (Class TU) visa, subclass 500, held by Echavarria Jaramillo. The applicant had breached visa condition 8202, specifically by failing to maintain enrolment in a registered course of study and by not achieving satisfactory course progress. The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal considered the applicant's submissions, which included that COVID-19 lockdowns had impacted her ability to study and enrol, and that her visa cancellation would cause emotional distress to her autistic sister in Australia. The applicant also provided a letter of offer for a new course. However, the Tribunal noted that the applicant's enrolment history showed multiple course cancellations, including due to unsatisfactory course progress and non-commencement of studies, with the most recent cancellation occurring on 22 September 2021. The Tribunal found that the breaches did not occur in circumstances beyond the applicant's control.

Applying the principles of section 116(1)(b) of the Migration Act, the Tribunal was satisfied that the ground for cancellation existed. In exercising its discretion, the Tribunal weighed the circumstances of the case, including the applicant's stated reasons and her commitment to future study, against the repeated breaches of her visa conditions. On balance, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Class TU visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

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