Inostroza (Migration)

[2019] AATA 4074

Inostroza (Migration) [2019] AATA 4074 (15 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sebastian Alejandro Inostroza

CASE NUMBER:  1908967

HOME AFFAIRS REFERENCE(S):           BCC2018/4133989

MEMBER:Mr S Norman

DATE:15 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 15 August 2019 at 11:35am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – convicted of an offence – assault occasioning actual bodily harm – consideration of discretion – violent nature of crime – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 April 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act). The Department delegate’s decision was not lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(g) of the Act. 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 9 August 2019 to give evidence and present arguments.

4. The Tribunal had been (initially) asked to take oral evidence from two named witnesses. However, at hearing the applicant explained both witnesses had departed Australia and he agreed that he no longer wanted the Tribunal to take evidence from these witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.  

5. 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

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is 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)(g) of the Act. 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.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. That stated:

   (oa)  in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

8. At hearing, the Tribunal advised the applicant that subject to his comments, the following information (which had been contained in the Department delegate’s decision) would be the reason or part of the reason for affirming the decision under review. The Tribunal also advised the applicant that he could request further time within which to respond (though no such request was made). The Tribunal then said that if it accepts the following information, it would satisfy it the applicant had been convicted of a crime in Australia, and that his visa may be cancelled. The information follows:

   The applicant was granted a Student (Vocational Education Sector) (class TU) (subclass 500) visa on 29 May 2017 (expiry date 5 June 2020). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 2 April 2019, the applicant was advised that information then before the Department, was that:

   ·     on 14 December 2018, at the Sutherland Local Court, the applicant was convicted of “Assault occasioning actual bodily harm”. This had arisen due to an incident on 4 August 2018

   ·     the applicant was sentenced to “Community correction order: 18 months commencing 14 December 2018 concluding 13 June 2020. Compensation: $529.20

   The applicant was advised that as he had been convicted of an offence against the law of the state of NSW, his Student visa may be cancelled under s.116(1)(g) of the Act; as a prescribed ground for cancelling a visa applies (see r.2.43(1)(oa)).

9. By letter dated 8 April 2019,[1] the applicant had said this was the first time he had problems with the law; he only had one year left to study to complete his (Advanced) Diploma in Leadership and Management; he then would return to Chile to engage in business; he also had attempted to “follow all the steps to be able to pay the fines, even to make a payment when receiving a letter of warning”. He says he now tries to respect the law. 

   [1] Department – folio 34.

10. That being said, at hearing the applicant did not dispute he had been convicted of the above offence.

11. For this reason, the Tribunal is satisfied the ground for cancellation in s.116(1)(g) of the Act, exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

12. 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’.

13. Regarding the purpose of the (Chilean citizen) applicant’s travel to and stay in Australia, information on the Provider Registration and International Student Management System indicated the applicant had completed his intended course, being a Diploma of Leadership and Management on 7 April 2019.

14. The applicant had subsequently enrolled in a Advanced Diploma of Leadership and Management at the Australian Pacific College, which course he (initially) had said commenced on 29 April 2019 and was due to finish on 5 April 2020.  

15. At hearing, the applicant explained that he arrived in Australia in January 2017, that while in Australia he had engaged in sessional demolition work in the construction industry (employed through an agency), and that he had completed the following courses:

    ·     Certificate IV

    ·     Diploma of Leadership and Management (on 7 April 2019)

    and he was proposing to commence an:  

    ·     Advanced Diploma of Leadership and Management (in early August 2019 – though he had not paid any fees as he was awaiting the outcome of the Tribunal hearing)

16. After considering the evidence, the Tribunal accepts the applicant travelled to and stayed in Australia, for the purposes of study.

17. Regarding the extent of compliance with visa conditions, there is no evidence the applicant has breached further visa conditions.

18. Regarding the degree of hardship that may be suffered by the applicant or his family, if his Student visa is cancelled, the applicant arrived in Australia on 31 January 2017 (over three years prior to the Tribunal hearing). There is no evidence of any family members in Australia. The (approximately 31 year old) applicant also said he wished to complete his studies in Australia, then return to Chile with his qualifications and improved English language skills. He said he proposed to use these skills to pursue future business opportunities in Chile.

19. When discussed at hearing, the applicant said that prior to travelling to Australia, he had lived, studied and worked in Valparaiso in Chile. While studying, he had worked for his ‘director’ at a university in Valparaiso, who also operated a ‘liquor store’. The applicant had operated that liquor store on behalf of the director. The director also wished to start another liquor store and the applicant believed that with higher qualifications (Advanced Diploma of Leadership and Management), and studying in an English speaking country where he could improve his English language skills (the hearing was conducted primarily in English), he would be well placed to obtain the job of manager of that other store. Be that as it may, the applicant explained that on his return to Chile, he would again work at the liquor store.

20. The Tribunal then put the gist of the following information at hearing. Regarding education in Chile, the country information stated:

    Chile’s Educational System
    Chile’s education is compulsory up to the age of 18, or full secondary education. The state provides all resources (classes, books, materials and food).
    .....

    The first three phases: the nursery, basic and secondary education are free and financed by the state. Partially subsidized private schools, split the cost of education between the state and the student’s parent or guardian. In the case of private schools, the entire payment is assumed by parents or guardians.[2]

    and:

    For decades, Chile has been at the forefront of education reform in Latin America. The major international rankings conducted over the past decade have shown that, while Chile has some work to do to catch up with the developed world, it is the undisputed leader in Latin America.

    …..

    When it comes to higher education, as well, Chile has seen expanded access. Over 29 percent have completed some form of advanced degree – just below the OECD average of 32 percent. And in the younger cohort, between the ages of 25 and 34 years old, that number climbs to over 41 percent – above the OECD average. Nearly 70 percent of these are the first in their family to go to college.

    At the same time, there are clearly still challenges. Chile has the most unequal income distribution in the OECD, and socio-economic disadvantages are reproduced in the education system, rather than countered by it. ….[3]

    [2] “LET’S BE REALISTIC AND DO THE IMPOSSIBLE,” INNOVATIVE EDUCATIONAL REFORM IN CHILE SETS NEW GROUND., LATINA REPUBLIC, POSTED BY - JUAN MANUEL HENRÍQUEZ ON - AUGUST 28, 2018 .

    [3] Atlantic Council, >

    Regarding the economy and employment in Chile, the country information stated:

    Economic Survey of Chile

    The quality of life of Chileans improved significantly over the last decades, supported by a stable macroeconomic framework, bold structural reforms, such as trade and investment liberalisation, and buoyant natural-resource sectors. The quality of life approaches the OECD average along some dimensions of well-being -- notably jobs and earnings, worklife balance, health and subjective well-being.[4]

    and:

    In terms of employment, around 63% of people aged 15 to 64 in Chile have a paid job, below the OECD employment average of 68%. Some 73% of men are in paid work, compared with 53% of women.In Chile, about 10% of employees work very long hours, less than the OECD average of 11%, with 13% of men working very long hours compared with 6% of women.
    

    [4] OECD, Chile Economic Snapshot 2019,

    [5] OECD Better Life Index, education and skills are important requisites for finding a job.[5]

21. At hearing, the Tribunal advised the applicant (words to the effect) it may consider whether he could obtain acceptable education outside Australia (ie in Chile), and whether he could obtain work commensurate with his skills in Chile, and whether the qualifications he had already obtained in Australia, would adequately prepare him for returning to work in Chile, even as a manager of the liquor store (as he claimed he hoped to do).

22. The applicant said ‘people work for minimum wage’ in Chile, but the Tribunal noted the country information stated the ‘quality of life approaches the OECD average along some dimensions of well-being -- notably jobs and earnings, work-life balance, health and subjective well-being.’ He also said he may have to reside with his parents in Valparaiso, Chile. The Tribunal understands the applicant’s younger brother also resides with the parents, but that his sister had married and resides elsewhere with her husband. The applicant said he could not live with his parents ‘forever’, but the Tribunal notes he has shown himself to be capable of living in Australia, a country with a language and culture different from his own, that he now holds higher education qualifications (a Diploma of Leadership and Management) from Australia (and the country information stated ‘Good education and skills are important requisites for finding a job’). After then considering the accepted evidence and the country information above, the Tribunal is satisfied the applicant could find suitable work in Chile, and that should allow him to live independently on return. 

23. However, the Tribunal will accept that not being able to complete the Advanced Diploma in Australia may have some impact on the applicant. Further, that he or his family may suffer some limited hardship should the applicant’s Student visa be cancelled.

24. Regarding the circumstances in which the ground of cancellation arose, the applicant was convicted of assault occasioning actual bodily harm on 14 December 2018 and was sentenced to a community correction order for 18 months, and he was fined $529.20. In his response to the NOICC (and at hearing), the applicant said he had not previously had any adverse association with the law and he was law-abiding, including after the conviction. Be that as it may, the Tribunal notes the violent nature of the crime, and has taken that into account.

25. Next, there is no evidence the applicant has been uncooperative with either the Tribunal or the Department. There is no evidence before the Tribunal that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. There is no evidence before the Tribunal that Australia’s international obligations would or may be breached, if the applicant’s Student visa is cancelled. After considering the accepted evidence herein, the Tribunal is not satisfied the applicant has a compelling need to travel to or remain in Australia.

26. At hearing, the applicant also claimed he had received harassing text messages from a person who he claimed was in attendance at the aforementioned incident on 4 August 2018. However, the Tribunal noted that it did not understand this was relevant to this case (and no material explanation was offered) and that if he was concerned, there may be other authorities in Australia he could approach.

27. Next, if the applicant’s Student visa is cancelled he would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, there is no evidence before the Tribunal that has satisfied me the applicant would be subject to indefinite detention. Further, after considering the evidence the Tribunal is satisfied the applicant could temporarily retain his Bridging visa in order to remain in the community to organise his affairs prior to departing Australia.

28. The Tribunal also notes that if the applicant’s Student visa is cancelled he would be subject to s.48 of the Act, and he would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation. 

29. After then considering all the accepted evidence herein, including but not limited to, the nature of the offence and that the Tribunal is satisfied the applicant would only suffer limited hardship if his Student visa is cancelled, and notwithstanding the applicant claim he would wish to return to Chile in 12 months, the Tribunal is satisfied it is appropriate to exercise the discretion to cancel in this case.

30. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

31. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Mr S Norman
    Member