Lantidis (Migration)

[2019] AATA 4462

Lantidis (Migration) [2019] AATA 4462 (24 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dimitrakis Lantidis

CASE NUMBER:  1826372

HOME AFFAIRS REFERENCE(S):     BCC2018/227578

MEMBERS:Dr Jason Harkess

DATE:24 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and substitutes in its place a decision not to cancel the visa

Statement made on 24 July 2019 at 11:41am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – family health and financial difficulties – application for a partner visa – genuine temporary entrant – decision under review set aside       

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicant is a citizen of Cyprus. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 6 September 2018 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant’s student visa was granted on 3 August 2016 with an original expiry date of 15 March 2019, providing for more than 2 years 7 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

3. The visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia. Specifically, the Applicant was to enrol in and successfully complete a Certificate IV in English as an Additional Language (‘EAL’), followed by a Certificate III in Business and then a Certificate IV in Business. The delegate cancelled the visa on the basis that the Applicant had breached that condition of the visa which required him to remain continuously enrolled in a registered course of study.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The Applicant appeared before the Tribunal on 17 July 2019 to give evidence and present arguments. He was assisted by his registered migration agent, Mr Danny Mak.

6. For the following reasons, the Tribunal has decided to set aside the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as they then were, when the visa was granted. In the present case, the issue is whether the Primary Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

1. Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 29 May 2017 to 6 September 2018 as the relevant period during which the Applicant was not enrolled in a registered course. This amounted to almost 15 months during which the Applicant was in continuous breach of the visa.

2. The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so.

   [1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. The PRISMS report obtained by the delegate indicated that the Applicant finished the Certificate IV EAL, as originally planned, although in the course of the hearing the Applicant clarified in evidence that this was not the case. The PRISMS report also indicated that the business courses were cancelled by the course provider on 29 May 2017. At the date of the delegate’s decision, the Applicant had not been enrolled in any registered course of study since 29 May 2017.

4. The Department of Home Affairs wrote to the Applicant on 27 June 2018, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

5. The Applicant provided a written response to the Department on 2 July 2018 (‘the Applicant’s NOICC response’). In that response, the Applicant appeared to acknowledge the breach of the visa condition by explaining the circumstances giving rise to it. In his evidence before the Tribunal on 17 July 2019, the Applicant also conceded that he had been in breach of his student visa for the period alleged by the delegate.

6. Accordingly, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202(2)(a) of the visa.

Consideration of the Discretion to Cancel the Visa

1. 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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. In his NOICC response, the Applicant stated that shortly after his arrival in Australia his father in Cyprus was sick and his condition worsened. His family faced financial issues with respect to his father’s hospitalisation. The situation proved to be a distraction from his studies. At the same time, the Applicant had only recently met his current wife, Ms Tracy Han, an Australian citizen. The relationship developed and they are now married. He moved in with Ms Han on 29 May 2017, coincidentally on the same day that the Applicant’s enrolment in the business courses was cancelled. The Applicant took the advice of his soon-to-be wife and took time off from working and studying. As he had worked as an electrician back in Cyprus, he took the opportunity to spend most of his days helping to renovate Ms Han’s apartment.

3. All of this was confirmed by the Applicant at the hearing before the Tribunal on 17 July 2019. As the Applicant candidly stated in evidence before the Tribunal, the need to study at that time had disappeared. So it would also seem that the need for a student visa also disappeared.

4. It is regrettable that the Applicant failed to notify the Department of Home Affairs of the change in his circumstances in relation to his studies. However, it is clear that he took appropriate steps by lodging an application for a partner visa when it became clear that the relationship between the Applicant and Ms Han was going to be one which lasted indefinitely and that he now wished to reside in Australia permanently. The Tribunal has confirmed, with reference to Department of Home Affairs records, that the Applicant lodged his application for a partner visa, with Ms Han as the sponsor, on 9 May 2018. That application is still in the process of being determined.

5. The Applicant stated that he now wishes to re-qualify as an electrician in accordance with Australian regulatory requirements. In the course of the hearing, the Tribunal inquired as to whether his Cypriate qualification is recognised in Australia. He said it was not. Following the hearing, the Applicant produced documentary evidence in support of this claim. That evidence shows that the Applicant is a qualified electrician in Cyprus. It also shows that he will need to apply to Trades Recognition Australia for an ‘Offshore Technical Skills Record’ (‘OTSR’) to undertake similar work in Australia. Once the OTSR is issued, which verifies his Cypriate qualification, he is eligible to apply for a provisional licence with the relevant Victorian State authority. This provisional licence will permit him to work as an electrician under supervision while completing Australian ‘context gap’ training. It would appear to be a long process, involving at the very least enrolment in and successful completion of a Certificate III in electro-technology. And so the need to study in Australia, given the Applicant’s change in circumstances, has arisen for the Applicant again.

6. That need to study, however, is somewhat academic in the present circumstances given that it is clear that the Applicant now wishes to remain in Australia permanently. In these circumstances, it is inevitable that any application for a further student visa would be refused in accordance with the ‘temporary entrant’ criterion that applies to the issuing of such visas. He does not intend to study here ‘temporarily’, because he wishes to remain here permanently. He would not meet the temporary entrant criterion.

7. But the Applicant has raised a more significant point in relation to why he seeks to have the decision to cancel his student visa set aside. He is currently on a bridging visa which, due to the cancellation of his student visa, disentitles him from working and studying. Understandably, he is frustrated by these restrictions because they continue to operate until, at the very least, his partner visa is granted.

8. The Tribunal has considered the possibility that the partner visa may be granted. While it is not the role of the Tribunal in the context of the present application on review to make a determination as to whether the relationship between the Applicant and Ms Han is genuine, the Tribunal must still take into account the hardship that may arise to the Applicant and Ms Han if the cancellation of his student visa remains in effect.

9. To this end, the Tribunal invited the Applicant to obtain a statement from Ms Han that could be provided to the Tribunal, attesting to her relationship with the Applicant and the effect that the cancellation decision was having. That statement was provided to the Tribunal on 19 July 2019. Ms Han confirms the genuineness of the relationship and that she and the Applicant were married in 2018. Her statement is consistent with the evidence of the Applicant. She also notes that the restrictive bridging visa conditions, including a ‘no work’ condition, attaching to the Applicant’s current bridging visa is having a detrimental impact on their finances. The Tribunal accepts this evidence.

10. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. There is no adverse evidence before the Tribunal in that regard. There also do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

11. In the circumstances of this case, the Tribunal is of the view that the effect of a cancellation of the Applicant’s student visa is unduly punitive, both to him and to Ms Han.

12. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa should not be cancelled.

DECISION

1. The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and substitutes in its place a decision not to cancel the visa.

Dr Jason Harkess
Member