Fitzroy (Migration)

[2019] AATA 5471

Fitzroy (Migration) [2019] AATA 5471 (28 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashley Gerrard Fitzroy

CASE NUMBER:  1731757

HOME AFFAIRS REFERENCE(S):          BCC2017/3684433

MEMBER:Noelle Hossen

DATE:28 November 2019      

PLACE OF DECISION:  Perth

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 28 November 2019 at 12:21pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – genuinely mistaken about enrolment status – hardship to wife and her mother – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 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 12 December 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course. 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 the 31 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from his wife Lydia Yousef.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. Prior to the cancellation he was sent a Notice of Intention to cancel his visa (NOICC) on the 23 November 2017.He provided a Response to the Department on the 28 November 2017.The Visa was cancelled on the 12 December 2017.

9. At the hearing the applicant conceded that he had not been enrolled in a registered course of study since April 2017.He stated that he was unaware that he was in breach of the conditions of his visa. He said that the people who organised his course did not email him and he was under the mistaken belief in view if the COE that he had received that he was enrolled in a Course until 10 November 2017.

10. The applicant confirmed that following receipt of his NOICC that he enrolled in a Diploma of Leadership and Management on the 30 November 2017.

11. The applicant was aware that the Department had considered his position and that he enrolled in a registered course of study on the 30 November after receiving the NOICC and that he was not enrolled for 7 months in an attempt to satisfy the requirements of his student visa

12. The applicant confirmed that he was not enrolled in a registered course since April 2017 and this became apparent to him when he received the NOICC. .Accordingly the applicant has not complied with condition 8202(2)

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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’

15. The applicant stated to the Tribunal that he has been employed all of his life and came to Australia for a break. When he was in Melbourne initially he applied for jobs as he was on a working holiday visa. He was told that his skills were insufficient and that he had to obtain a Certificate III and IV in carpentry. He then applied for a student visa and was enrolled in Certificate III and completed the Course.

16. His Certificate of Enrolment stated that the courses ran from 11/04/2016 to the 10/11/2017. He provided a copy of the Certificate of Enrolment to the Tribunal and what the applicant stated is correct. He had attended the college and had completed the course for the Certificate III. He thought that the course had ended but he was still enrolled. He said that the college had admitted that they had made a mistake as the reality was that the course ended in April 2017 according to the Department’s records. The Tribunal places some weight in the applicant’s favour in respect of the fact that he may have genuinely believed that he was still enrolled.

17. The applicant is married to Lydia who is an Australian citizen who was born in Australia. She gave evidence at the hearing.

18. She has been supporting him emotionally and financially. Her evidence was direct and the Tribunal accepts her evidence as she appeared to be telling the truth.

19. She said that she and the applicant live with her elderly mother who has heart difficulties and has broken her wrist. She needs care so they live with her and Lydia helps her out. They were married on the 26 July 2019 and would like to apply for a spouse visa.

20. She worked on a full time basis as a Human resources officer. She has been employed for most of her life and had a good track record. Her husband is unable to support himself. She has been the main breadwinner. She does not have to pay rent as they live with her mother. She earned a reasonable income and was able to save sufficient funds for her to remain at home for a while as they planned to have children and she was taking care of her elderly mother.

21. She would like to remain in Australia to look after her mother but in the event that the visa is cancelled she will move to Ireland and wait out the period so that they will eventually wish to come back to Australia.

22. This situation would cause them hardship as she was planning to start a family and had saved money to stay at home to care for her mother and any children that they may have. She had volunteered to look after her mother as she was the eldest child in the family and her siblings had designated that she do so. She said it would be a hard choice for her to have to make but it would be likely that she would continue to support her husband and go to Ireland with him if the situation was not favourable and his visa was cancelled.

23. The Tribunal considers that the cancellation of the visa would cause his wife and her mother hardship as it would not be in their best interests for them to have to live in Ireland and for him not to be in a position to return to Australia for 3 years.

24. His mother in law is dependent on her daughter to look after her and it would cause the family hardship if the visa was cancelled.

25. The Tribunal finds that the applicant did have a belief that he was enrolled in a registered course right through to November. He also tried to rectify the situation once the problem was brought to his attention by the Department. The Tribunal does place some weight on the fact that the applicant did attend the course in the applicant’s favour and that he did try to comply with his visa conditions.

26. There is no evidence that the applicant has not complied with other country’s migration laws or that he has not complied with other previous visa conditions.

27. The Tribunal has considered whether any other person’s visas would be cancelled pursuant to section 140 of the Migration Act as a result of the cancellation of the applicant’s visa. Any cancellation will not result in any automatic cancellation of the visa of any other person.

28. There is no information before the Tribunal that would indicate that any cancellation would result in any breach of Australia’s international obligation. The Tribunal does not weigh this factor neither in favour nor against cancelling the applicant’s visa.

29. On the evidence before it the Tribunal has considered all of the factors and in particular the hardship to be caused to the applicant’s family and does consider that the Tribunal should exercise its discretion not to cancel the visa. Considering the circumstances as a whole the Tribunal concludes that the visa should not be cancelled.

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

    DECISION

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

    Noelle Hossen
    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.