Jocquet (Migration)

[2019] AATA 2727

Jocquet (Migration) [2019] AATA 2727 (18 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dorian Julien Rene Jocquet

CASE NUMBER:  1713899

HOME AFFAIRS REFERENCE(S):           BCC2017/1612060

MEMBER:Brendan Darcy

DATE:18 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU visa.

Statement made on 18 February 2019 at 4:52pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector visa – enrolment in a registered course – potential relationship breakdown – applicant creating training company in Australia – studying after enrolment cancellation – victim of physical assault – genuine student – decision under review set aside     

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8; Condition 8202; r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 June 2017 made by a delegate of the Minister for Immigration and Border Protection 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).

2. The delegate cancelled the visa on the basis that the applicant was not compliant with visa condition 8202 and the grounds for proceeding with cancellation of the visa outweighed the grounds for not cancelling the 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. The applicant, a French national, appeared before the Tribunal on 18 February 2019 to give evidence and present arguments.

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.

9. As discussed in the scheduled hearing, the applicant first arrived in Australia on 7 November 20213 while holding a Class TZ Subclass 417 Working Holiday visa. On 11 November 2014, the applicant was granted a further Subclass 417 visa. The applicant departed Australia for France on 3 December 2014 and returned on 25 February 2015.

10. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 572 student visa for vocational education on 3 December 2015 and the stay period of the visa was extended up to and including 4 April 2018.  The applicant explained that he enrolled in a vocational coursework at the time of application to complete a Certificate IV in Building and Construction (Building) at the Universal Institute of Technology Pty Ltd (UIT).

11. The record further states that on 29 September 2016, the education provider, UIT, notified the Department that the visa holder has ceased studies and was no longer enrolled due to the non-payment of fees.  It also mentioned that the visa holder re-enrolled in a Certificate IV in Building and Construction from 21 June 2017. (The applicant also submitted a copy of the Confirmation of Enrolment to the Tribunal). The delegate calculated that the visa holder did not meet the requirements of condition 8202 during the period 27 September 2016 to 20 June 2017 - a total of 267 days without enrolment.

12. The decision record indicates the applicant was further contacted by a departmental official by issuing the Notice of Intention to Consider Cancellation (NOICC) on 16 June 2017; and to respond within five working days.

13. On 22 June 2017, the applicant responded to the NOICC in writing and did not dispute that he had breached condition 8202.

14. On 29 June 2017, the applicant applied to have the delegate’s decision reviewed with the decision record attached.

15. Based on the applicant’s written and oral evidence provided by the applicant to the Tribunal, the applicant did further not dispute that he had breach condition 8202 between the dates of 27 September 21016 to 20 June 2017.

16. 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).

17. Accordingly, the grounds for cancellation under s.116(1) exists.

    Consideration of the discretion to cancel the visa

18. 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’.

    The purpose of the visa holder’s travel to and stay in Australia

19. According to the decision record, the substantial period of non-compliance with condition 8202 it appeared that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study but as he had not undertaken a course to further his education and receive a qualification, the delegate stated that there was no evidence that the visa holder’s original intention was to travel and stay in Australia for the purposes of studying.

20. The applicant had been enrolled in a Certificate IV in Building Construction and a Diploma in Building and Construction.  On 29 September 2016, the applicant’s then education provider notification to the Department that he ceased his studies and was no longer enrolled, which led to the cancellation of this visa under review. The applicant re-enrolled in a Certificate IV in Building and Construction after the date of the NOICC had been issued. In the context of the applicant’s long period of non-enrolment and the timing of this late enrolment, the Tribunal finds the applicant re-enrolled only to mitigate the likelihood of his visa being cancelled and the places not weight on this as indicating the purpose of the applicant’s travel and stay in Australia.

21. The applicant provided the Tribunal with a written statement at the time of the review application that while he was not enrolled he was studying; that he had failed a few units of coursework; that he did not need to attend all units of coursework. The applicant also stated that he planned to undertake a diploma for landscape design at Holmesglen Institute, as he had been working in a landscaping company on a part time basis for two years and this would be a pathway for gaining a sponsorship for a work visa. 

22. While waiting for the Tribunal to make a determination about this visa cancellation, the applicant since has persevered with his coursework by applying for a bridging visa to remove conditions 8101 (no work) and 8207(must no engage in studies). He has since completed a Certificate IV in Marketing and Communications at UIT and that he is enrolled in a Diploma of Social Media at the Australian Pacific College. According to applicant, he has completed the diploma’s first semester and he is set to complete the diploma in June 2019. The Tribunal places considerable weight on this ongoing studies and academic progress to indicate to the Tribunal that the purpose of travelling to Australia is to study on a full time basis and that the applicant has demonstrated some determination to further his studies and receive a qualification.

23. In the applicant’s most recent statutory declaration, he stated that he changed his focus for studies to marketing and social media because his father and step mother intended to expand their family business online and that this coursework would be more beneficial to his future employment prospects and that his parents will financially and emotionally support him in these studies. The Tribunal invited the applicant to explain the change of coursework from building and construction to marketing and social media. The applicant responded that it was originally the case he wanted to study building and construction and later landscaping but he has since changed his mind after his father and step mother encouraged him to work for their family business in France which requires online marketing to expand.  During the hearing, the applicant also explained that that while he qualified to do engineering in a French university, his vocational aptitude was more manual and practical than theoretical and abstract.

24. Ordinarily the Tribunal places little weight on applicant’s changing coursework when they are unrelated to earlier enrolments or when career goals are shifting. However, in the context of the applicant’s ongoing studies since the cancellation of his student visa, the Tribunal finds there is insufficient evidence to doubt this intention to complete a coursework on a full time basis. Based on the available information, cumulatively considered, the Tribunal is overall satisfied that the applicant’s purpose of travelling to Australia was to study and places substantial weight in this overall finding in favour of not cancelling the visa.

    The extent of compliance with visa conditions

25. It is noted the applicant provided the Tribunal with employment statements that he has working 40 hours a week while holding his student visa, indicating that he has not breached the part time work condition imposed on student visa holders. There is no evidence before the Tribunal to indicate the applicant did not comply with other conditions. The delegate decision does not record any information about further non-compliance. The Tribunal places some weight on this lack of evidence of non-compliance with other visa conditions in favour of the visa being reinstated.

26. However, the applicant was not enrolled in a registered course for a long period of time – 267 days. The Tribunal considers this significant to the question whether his visa should be reinstated. The Tribunal places no weight on the applicant’s re-enrolment in coursework after this issuing of the NOICC. The applicant has provided explanations to the Department and the Tribunal for this non-compliance. The Tribunal gives this factor regarding non-compliance some weight towards the visa remaining cancelled.

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

27. IN the applicant’s response to the NOICC, he did not provide any information that was relevant to his consideration. The delegate, unaware of any hardships, accepted some hardships would arise.

28. On 29 June 2017, the applicant claimed that he would face emotional hardship as he has been a meaningful relationship with a girl since December 2016 and that they had developed mutual goals which they wished to pursue. The applicant argued the cancellation of his visa could mean a probable relationship breakdown as he would be geographically separated. The applicant also argued that he had been working with business partner to create a company for teaching workshops and short courses and that the cancellation would affect this project and his partners. He also feared the cancellation would be disruptive on the landscaping business that had employed the applicant for the last two years and had become reliant on him. The applicant also generally claimed that he had nothing back in his home country and had made many lasting friends in Australia as well as the love of his life.   

29. During the scheduled hearing, the applicant updated the Tribunal that he was no longer in the same meaningful relationship (and was developing a new one with another girl who was not an Australian permanent resident or citizen); that he and his business partners have abandoned their business plans; and that he was no longer working for and no longer interested in being sponsored by that landscaping business.  He also claimed that that he does have a future back in France with his parents’ business and submitted supportive statements from his parents to the Tribunal. When asked if he complete his studies back in France or some other European country, the applicant claimed that there were no diplomas in social media in France but was unsure if that was other relevant coursework was offered by education providers other European countries. He also expressed regret or sadness in leaving for Australia because of the friendships he has developed since his arrival. 

30. The Tribunal finds that the applicant will face some emotional, educational and financial hardships if his visa were to remain cancelled. However the applicant failed to demonstrate in any convincing gravity that the degree of hardship arising from these challenges will be severe, significant or even notable.  Accordingly, the Tribunal places some but not a notable amount of weight on the hardships that might be caused if this visa remains cancelled, toward having the visa reinstated.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

31. The applicant provided a short written response to the Department as part of his written NOICC response. In the response, the applicant claimed he was not aware of this matter as I did not receive any information about his enrolment being cancelled by UIT as it appeared that the information was in his spam box. The applicant said that this was his fault.  The response also states that a debt recovery agency contacted him about two months prior to the issuing of the NOICC. It says he has erased his debt and that they issued him with a new CoE on 21 June 2017. The applicant claimed that the problem has been miscommunication between him and the education provider about tuition fees.

32. On 29 June 2017, the applicant provided written reasons that the enrolment’s cancellation which led to the grounds for the visa under review to be cancelled. He stated that he understood that not having a CoE is a condition on having a student visa but argued that he had been studying without an enrolment and that he unaware of the CoE had been cancelled.

33. During the scheduled hearing, the applicant elaborated that he usually paid his tuition fees – about 4000 dollars – through a direct debit from his credit card but had not placed money on the credit card, for which he accepted responsibility. He claimed that had he earlier learnt of his non-compliance by the education provider he would have paid the amount immediately. However he did not receive any letters or phone calls and that the only emails he received in this regard went undiscovered into his spam in-box where typically unsolicited messages are stored – until a month before the issuing of the NOICC when he received a debt collector’s letter for the fees. When the Tribunal asked the reasons the education provider permitted the applicant to continue studying given he admitted not to paying tuition fees and given such service providers were vigilant in collection such debts. The applicant said it was because he studied mostly on the weekends when administrative staff was not available. The Tribunal continues to have credibility concerns about these unpersuasive explanations, despite the applicant being consistent about these claims. Nevertheless, the Tribunal has provided the applicant with the benefit of the doubt that this explains the reasons for the applicant’s enrolment cancellation and his non-compliance but that these otherwise plausible explanations do not demonstrate the applicant endured extenuating circumstances beyond his control as the applicant was aware of his tuition fees were outstanding for some time.

34. In this regard, the applicant offered a further explanation for his non-compliance:

35. On 15 February 2019, the applicant provided a statutory declaration dated 13 February 2019 which advanced the argument that he had been involved in a traumatic and vicious physical assault on 22 August 2015 in Melbourne at 2.00AM. The applicant claimed the attack required medical treatment to his eye and face at a hospital and later to his teeth with a dentist He further claimed that the attack led to arrests and that he successfully sought compensation at the victims of crime assistance tribunal in March 2016. The applicant claimed he received on two weeks of loss of wages, which did not cover the dental costs; that the assault affected his capacity to function and work; and that the entire process was stressful.  The applicant provided considerable evidence – police report, photographs, and victims of crime compensations – to support this claim. The Tribunal accepts this to be the case.

36. The applicant relevantly claimed he has undertaken psychological counselling in May 2018 as the applicant argued he suffered from worsening panic attacks, anxiety and depression since March 2016. While he continued to attend classes, the applicant further claimed his deterioration meant his psychological capabilities to meet with tuition fees were adversely impacted upon, notwithstanding the reminder emails went into his spam folder.  During the hearing, the Tribunal enquired into the reasons these psychological symptoms were not mentioned in this NOICC and his earlier statement to the Tribunal. The applicant claimed that he was embarrassed, lacking in confidence about talking about the incident. The Tribunal notes that the applicant’s demeanour during the scheduled hearing exhibited signs that he was withdrawn and over-nervousness. While the Tribunal accepts these reasons for the lateness of the claim, the Tribunal noted that the applicant continued working and to have maintained his studies while not enrolled. This evidence demonstrated to the Tribunal the applicant was an otherwise functioning adult who was capable of avoiding non-payment of fees, or at least mitigating against his non-compliance by taking earlier action about his tuition fees. In no way does the Tribunal accepts his psychological symptoms were so severe as to be deliberating.  Nonetheless, the Tribunal accepts some underlying psychological conditions that played an adverse role in the applicant’s decision-making leading to his non-compliance of condition 8202 but these symptoms were so extenuating conditions as to be beyond the applicant’s control over the relatively lengthy period of non-compliance. 

37. Accordingly the Tribunal gives these extenuating circumstances some weight towards the visa not being cancelled, but not as exceptional circumstances beyond the applicant’s control, that led to the grounds for cancelling this visa under review. 

    Past and present conduct of the visa holder towards the Department

38. The applicant has been a holder of two Working Holiday visas in the past.  There is no evidence he has overstayed any visa in the past. There was no evidence that the applicant had been uncooperative towards the Department. Tribunal gives this factor a little weight in his favour.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

1. Not relevant.

   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

2. As discussed in the hearing, the Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to be asked to depart Australia. If the applicant becomes an unlawful non-citizen, he can be detained and even forcibly removed. The applicant may also be restricted into re-entering Australia for up to three years.  In relation to this factor, the Tribunal gives this only little weight towards the visa not being cancelled.

   Whether there would be consequential cancellations under s.140

3. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

4. During the scheduled hearing, the applicant did not advance any specific claims that that he faces a well-founded fear of persecution for a nexus reason relevant to the Refugees Convention or any other reasons might breach other humanitarian obligations under other international treaties or protocols. The Tribunal notes that applicant is a citizen of the French Republic, a signatory to the same conventions and protocols as the Commonwealth of Australia, and that he has the right to enter and reside in a number of European Union countries to provide third country protection measures. Accordingly it gives this factor no weight in favour.

   Any other relevant considerations

5. At the scheduled hearing, the Tribunal noted that at the time of the applicant’s non-compliance with conditions 8202 he was under 25 years of age. It discussed with the applicant whether his non-compliance was due, at least in part, to the applicant’s immaturity and uncertainty about his shifting career goals and where he was unaware of how earnestly the Australian authorities take breaches of visa conditions imposed on visa holders. The applicant admitted that this was the case and stated that he had a more mature understanding about his migration obligations and what he wishes to achieve vocationally.  The Tribunal is satisfied that the applicant’s then immaturity played a role in his non-compliance.

6. However, in the context of his ongoing studies since the visa’s cancellation, it is remains satisfied that the applicant is a genuine student who is willing and capable of upholding the conditions on his visa, in part, because he has also emotionally matured. It places some, but not a notable, weight on this finding in favour of the visa not remaining cancelled.

   Conclusions

7. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

8. In this matter there is no evidence there was any mischief or malice behind the applicant’s non-compliance with 8202. The Tribunal has placed particular emphasis on the applicant’s academic progress since the cancellation of his visa and his perseverance in overcoming resulting psychological symptoms following a vicious physical attack in 2015. The Tribunal is accordingly satisfied that the applicant is genuinely motivated to complete his full time studies in vocational education and uphold the conditions on any future student visa. While the degree of hardship to be faced by the applicant is not assessed to be significant and the accepted circumstances leading to non-compliance are assessed as not being beyond the applicant’s control, the Tribunal finds there are more factors, cumulatively considered, in favour of having his visa being reinstated than in favour of the visa remaining cancelled.

9. The applicant should also be aware that the Tribunal only reached this favourable decision marginally in his favour.

10. The Tribunal notes that the applicant will have to apply for a new visa in a short period if he wishes to study in Australia. Due to changes in the Migration Regulations, Class TU Subclass 572 visas are not available to the applicant, as the Minister has made reductant Subclasses 570 through to 576 visas. They were replaced by Class TU Subclass 500 student visas on 1 July 2016.

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

    DECISION

12. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class TU visa.

    Brendan Darcy
    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.