Lima (Migration)

Lima (Migration) [2020] AATA 2700 (1 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Irlan Joney Lima
CASE NUMBER:  1728897
HOME AFFAIRS REFERENCE(S):          BCC2017/3450038
MEMBER:Genevieve Cleary
DATE:1 June 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 01 June 2020 at 12:07pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – no compelling need to remain in Australia – financial difficulties – non-payment of tuition fees – not beyond applicant’s control – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 November 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).
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 cancelation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 4 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.
The applicant was represented in relation to the review by his registered migration agent.
Prior to the hearing, the applicant provided to the Tribunal the Decision Record of the delegate. On the day of the hearing, the applicant provided to the Tribunal:
·A newspaper article dated 4 February 2017, showing that a busker, being the applicant, had had his musical equipment stolen;
·A copy of his application for a temporary work (short stay activity) Visa, unsigned and undated;
·A letter, not in English, dated 13 September 2015;
·A letter dated 25 June 2015 addressed to “to whom it may concern” from a company ‘is Brasil & World Music;”
·Two letters from the Australian Department of Immigration and Border Protection to the applicant dated the 12 September 2015, one of which notifies the applicant of the grant of a Temporary Work (subclass 400) visa;
·Four pages of a document which due to their presentation did not copy accurately and were difficult to read, however, were also not in English. No translation was provided;
·Letters from the Department of Immigration and Border Protection in December 2015 advising the applicant that his application for the student (temporary) (class TU) vocational education and training sector (subclass 572) Visa was invalid, and subsequently advising him that his application had been accepted;
·Correspondence regarding the declined credit card used for his Student visa application;
·Correspondence and the decision record from the Department of immigration and border protection in January 2016 notifying the applicant of the refusal of his application for the Student visa;
·A quote from Macquarie Educational Group for an English studies course commencing 5 April 2016, to run for 24 months;
·The notification from the Department of Immigration and Border Protection to the applicant in relation to the grant of a Visitor (subclass 600) Tourist visa dated 22 February 2016, for a duration of 1 year;
·The notification from the Department of Immigration and Border Protection to the applicant in relation to the grant of a Student (temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa dated 1 June 2016;
·The Notice of Intention to Consider Cancelation (NOICC) of his Student visa dated 30 October 2017.
The Tribunal has also had regard to the Department’s file.
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 (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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The applicant agreed at the hearing that he was not enrolled in a course at the time of cancelation.
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
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 cancelation powers.’
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant had studied cinema before he came to Australia, but did not complete the degree. He said that was because he already had a well paid job in his home country and many other qualifications, so he did not feel that he needed any further qualifications in that area. He will return to Brazil after he has studied in Australia and finish that degree. He told the Tribunal in his evidence that he already has certificates and experience in that area; for example, he has certificates from Adobe and Apple. He has also implemented a digital ‘era’ in the town of his birth through a TV station where he has worked for many years. He also played in a band in Brazil, and when he moved to the capital in 2013 he was working at the headquarters of a major company, not just an affiliate. He still has a contract with that company, and can go back there. Brazil is thriving and growing, and that will assist him in gaining work when he returns. Despite telling the Tribunal that he still has a contract to work with that company, he said he wants a business qualification from Australia to start up his own company when he returns to Brazil.
The extent of the explanation about his future prospects to the Tribunal is that he wants to get a business qualification here, and then go back and finish his degree in cinema. He needs a certificate from here at an international level that will assist him in going further in his own business. His business grew well and fast in Brazil and he commenced studying finance and enterprise there, both in person and on line. However, he accepted the offer to come to Australia, and therefore he came to Australia because of his business for the government and for his band.
The applicant came to Australia in September 2015, arriving on a Temporary Work (short stay activity) (class GA), subclass 400 visa. The visa was for three months and it contained a work limitation pursuant to condition 8107 and an activity limitation pursuant to condition 8303. He came as a videographer – he is associated with a band, and the band had been sponsored by the Brazilian government to come to Australia. In 2015 he had his own audio visual company and a band in Brazil, however he stressed in his evidence that he came as a videographer, not as a musician. He came here with 3 others, but the real purpose of his trip, he said, was not to play with the band, but to document the band playing here, and his plan was to make short videos. He – his company and his band, had a contract with the Brazilian government to do so.
In addition, he told the Tribunal at the outset that he had always wanted to come to Australia to travel and study and gain knowledge in Australia, and preferably to do a business course. Given the applicant told the Tribunal this at the outset, the Tribunal is satisfied that the applicant came here with a further stay beyond his contract to video the band, in mind.
His initial three months in Australia was spent as a volunteer fulfilling his contract with the Brazilian government and playing and filming music. However, he also said at the hearing before the Tribunal that what he hoped to achieve when he first came to Australia was to learn to speak English, and then go on to study a business course. I pointed out to him that that was inconsistent with what he had said about coming to Australia to make videos of his band playing in Australia for the Brazilian government. He attempted to clarify by telling the Tribunal that his intention was always to study in Australia, but before coming here, he contacted the Brazilian Community Council of Australia and offered himself as a volunteer. That council were the ones hosting the event at which the band had been invited to play, for which they received the government grant to attend. I asked him again whether he came here to study, or to work, or to volunteer. He responded that when the first short stay visa was granted, he was only able to work as a volunteer. When he filled in the application form, he said he was coming to work as a volunteer and he spent 6 months working very hard for the Brazilian Community Council of Australia here.
He also said his main aim was to study English, so he then made the application for the Student visa. The band returned to Brazil, and he remained here. He did not initially come on a Student visa because 10 months prior to coming to Australia the band had applied for a grant from the Brazilian government. It was a grant to play traditional Brazilian music in Australia. They had already been invited to play at a large Australian concert. The money granted was barely enough to cover their expenses, and it came so late that they had to purchase expensive tickets to get to Australia. They fulfilled their obligations to the Brazilian government, while he was also volunteering his services to Brazilian Community Council of Australia.
I asked him if he had always had the intention to study in Australia, why he did not simply apply for a Student visa at the outset. He said the band had asked him to assist them with the videoing of their concert, and he thought that he would do that first, and then he was within his rights to, when he was here, apply for a Student visa.
Before the expiry date of his initial 3 month visa he engaged an agent to apply for a Student visa, and his application was submitted 3 days before the expiry date of his visa, however his application was invalid because the credit card from the agency had expired; the visa was paid for 3 days late, and that meant he was here illegally for 3 days. It also appears to have meant that his Visa application was rejected on the basis that when the application was then officially received, he no longer held the subclass 400 Visa. Although it is the responsibility of the applicant to ensure that his application, including payment details, is correct in all respects at the time of the application, the Tribunal does not place any weight on the failure of the applicant to ensure that the credit card details were correct, as he is entitled to rely on an agency’s business practices being correct, and for agencies to not make such errors.
He then went to Bali because he had always wanted to go there, and he applied for a further temporary visa to re-enter Australia, being a Tourist visa.
He felt that the 3 months’ he had been in Australia had not been enough to get to know Australia properly, so he wanted to continue to be a volunteer and to study here. Before he went to Bali he had spent 2 weeks doing a general English course. He asked for a 3 month Tourist visa, but, he told the Tribunal, he was granted a visa for a whole year. He was granted that visa on 22 February 2016. That Visa held a no work condition pursuant to condition 8101 and a maximum three months study condition pursuant to condition 8201.
The applicant applied for a Student visa 3 weeks after he arrived back in Australia because he wanted to study 1 year of English and 3 years of business, as a suite of courses. He applied for a 4 year Student visa, which was granted through the streamlined Student visa processing arrangements. Condition 8202 of that visa was that the applicant maintain his enrolment in a registered course. The course the applicant was to undertake was to take place in Sydney through the Macquarie Education Group of Australia. The visa was granted on 1 June 2016. The applicant was of the view that because he applied for the Student visa as soon as he was granted the tourist visa, it showed that he had always intended to study here.
The Tribunal is satisfied that the applicant was entitled to come to Australia by virtue of the grant from the Brazilian government and he was entitled to seek a short stay visa to do so. While the applicant’s evidence about when he determined that he would stay and study – whether that was before he came to Australia or afterwards, seemed to vary throughout the hearing, the Tribunal is satisfied that at the time that the applicant applied for a student Visa he had a reason to do so, that is, he wished to remain in Australia to study. However, the Tribunal is not satisfied that the applicant was to undertake courses which would have value to his future upon his return to Brazil. Given the applicant already had, according to him, a number of qualifications from Brazil and had had a number of positions that he could return to, including his own business in Brazil, the only reason, the applicant appears to have wanted to remain in Australia to study was to gain an international qualification. The Tribunal accepts that wanting to gain a qualification in another country may be advantageous to a person’s future career prospects, and studying in English may also be advantageous to a person’s career prospects. However, the applicant did not place before the Tribunal any information as to how the courses he proposed to undertake were going to be particularly advantageous to him. Accordingly, the Tribunal can only give a little weight to the general advantages of studying in Australia.
The applicant told the Tribunal that for the first 3 months he was here, he had his own work station, and he worked exclusively for the Brazilian Community Council of Australia. It was not entirely clear from the evidence the applicant gave at the hearing, but it seems that he made the films of his band through that council. As there is no evidence before the Tribunal to suggest otherwise, I will assume that that is the case. The applicant also pointed out that as soon as he was granted his Student visa, he was able to work, and he did so. He commenced by working for Brazilian companies and business people here in Australia, producing videos for them. This work commenced as soon as he got his visa, so June 2016. He still does this work now. However because of his deficiency in English, he thought he was manipulated by people, including the Brazilian Community Council of Australia.
He now has his own post-production company and told the Tribunal he has work with major companies, which he named, being large multi national companies, and universities, and he freelances for another production company. He also works as a musician. His Bridging visa E entitles him to work 20 hours per week.
The applicant said that if he maintains his Student visa he will study for a certificate in business. He has the technical and artistic knowledge, and was completing a business course in Brazil, and he would like an international angle to his business studies. He said that he is now in a good psychological space, and he would like to go back to study so that he can return to Brazil with a qualification.
The applicant has consistently worked in a number of areas, including running his own business while he has been in Australia. While he was entitled to work by virtue of the conditions of his Student visa, the purpose of a Student visa is to be a student. He has not been a student, but remained in Australia, from 9 March 2017, when his enrolment was cancelled. While I accept that there was a delay in having his review heard, and that was out of his control, and he is entitled to have the delegate’s decision reviewed, he was not studying from March 2017, with the NOICC, to which he did not respond, coming in October 2017. The applicant did not present any evidence do the Tribunal from which I can make a finding that he made attempts to rectify his cancelation of enrolment, his inability to pay fees or that he contacted the department to advise them of his difficulties.
Therefore, the Tribunal cannot be satisfied that the applicant has a compelling need to study in or remain in Australia, and this weighs heavily against his Student visa not been cancelled.
Circumstances in which ground of cancelation arose. If cancelation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancelation arose were beyond the visa holder’s control
The English course the applicant commenced was for 1 year and at the beginning he was doing very well. At first he told the Tribunal that he completed the English course, but did not commence the business course. However, he then told the Tribunal he did not get the certificate from the course, and actually ceased going to the course in about February or March 2017. He therefore “almost” completed that course with about 1-2 months to go.
It was around that date that all his musical equipment was stolen while he was busking in Manly, and he referred the Tribunal to the newspaper article he supplied. At that time he was busking as a musician every day, and was freelancing in post- production. Sometimes the latter only provided 1 day a weeks’ work, others 2 or 3 days a week. He estimated that music was providing 90% of his income. The Tribunal accepts that he was the subject of a theft, and he lost all of his equipment. The applicant says that after this, he became stressed, and he did not have a good support group, or English. He had put all his energy into playing in the street, and had neglected his other businesses. He was financially strapped, and it was difficult to live. He was living in Manly so that he could work there in accordance with his licence, but the licence to work there was expensive. He also had a licence to busk in Circular Quay. He reported the theft to the police, but they did not investigate.
At first from the applicant’s evidence it seemed that it was the theft of the equipment which lead him to being unable to pay his fees, however later in the hearing, he said that he was already on a payment plan with the college by the time of the theft. He explained that he did speak to the English school about him not being able to meet his fees. The school is in the same building as his migration agency and he knew them very well, and he had made videos for both businesses. He called the college, and then saw the person who is in charge, and he came to an agreement to pay fees weekly, which he honoured, and to assist them with videos, which he hoped would enable him to pay the fees ‘in kind’. However, the theft was the last straw, financially, for him. His psychological state was fragile.

The Confirmation of Enrolment was cancelled in March 2017. It was cancelled because he was unable to pay his fees on the due date. He said he had both financial and psychological problems. He is self-contained and found it difficult to cope. He had lost his ability to make an income and he still had poor English. He felt that he was limited to working for other Brazilians in Australia, but had not built up any support groups here.
Despite his evidence that he was making videos for the college, and had a payment plan with them, he was not told that they were cancelling his enrolment. He stopped going to school around the same time his equipment was stolen, but he says he was still paying fees. He did not attend school because he needed money, so he had to perform more. He met a Brazilian policeman who told him that his matter was never fully investigated. He found everything very strange, and was disappointed with the lack of support and investigation by the authorities. He had been under pressure from the businesses in Manly, and the church where he used to play, to stop playing, and he feels they may have had something to do with the theft. In any event, 4 months’ later his equipment was recovered and returned to him.
He did not go to a doctor or therapist during this time because he was having financial difficulties.
As has been described elsewhere in these reasons, the applicant did not provide to the Tribunal any evidence to show that he attempted to rectify his cancelation of enrolment. Neither did the applicant provide any financial records in relation to his businesses or his personal finances such that the Tribunal can be satisfied that he was in significant financial difficulty and unable to comply with his Student visa. Therefore, the Tribunal is left with his very general evidence about his businesses, the arrangement he had made with the college about his fees and his inability to pay.
The applicant did not explain to the Tribunal how it was that he neglected to pay his fees, other than he neglected his businesses and he felt he had been manipulated by the Brazilian community which led to him having a lack of income. If the applicant had come to Australia with the intention to stay and study, as he insisted in his evidence, he would be expected to have had financial plans to support himself should he be unable to work when he got here. The applicant did not explain to the Tribunal his financial planning and there is no other evidence before the Tribunal that would suggest that he undertook any financial planning before he came here or even after he was here but before he applied for the Student visa.
In summary, therefore, the applicant has put before the Tribunal that his financial difficulties caused the cancelation of his enrolment. He has also spoken about stress and psychological problems. The theft of the equipment, it is accepted, would have resulted in stress for him, even without his suspicions about the police investigation, however, on his own evidence, his financial difficulties were in existence prior to the equipment being stolen. While it is accepted that he said that by that stage he had relied almost entirely on his musical income, the applicant also spent much time telling the Tribunal at the hearing about his businesses in postproduction and his certificates in and knowledge of various applications that would assist him in such businesses, and that he had had experience in freelancing in postproduction. Therefore, even on his own evidence, he had other avenues of gaining income. Aside from vague allegations of manipulation and difficulties in working in an English speaking community, which were then contradicted by his evidence about working with large companies such as Breville and universities in Australia, there is no evidence before the Tribunal from which it can be satisfied that his financial difficulties we are out of his control.
There is no clear evidence from the applicant as to him having any stress or psychological issues prior to the theft, although it is accepted that having to enter into a payment plan with his college would have been stressful in itself. The Tribunal is left with a lack of evidence as to why the applicant fell into financial difficulties in the first place. It is accepted that the theft exacerbated his financial difficulties and caused stress, however, there is no evidence before the Tribunal on which it can be satisfied that the reasons that he entered into a payment plan with the college in the first place were not of his own doing. The Tribunal is left with the conclusions that he did not adequately financially plan before he came to Australia, or when he decided to remain and study, or that he did not properly run his businesses.
Neither is there any evidence before the Tribunal that any stress or psychological problems were the cause of him either not attending classes or not being able to work so he could pay his fees.
As a result, the Tribunal is not satisfied that the cause of the cancelation of the enrolment and therefore the cancelation of the visa were due to circumstances beyond the control of the applicant. Further, the Tribunal is not satisfied that the applicant has explained adequately or at all why he stopped going to classes and why he did not contact the Department to advise them of the changes in his circumstances. Those factors weigh heavily in favour of his Student visa being cancelled.
I am satisfied that the cause of the cancelation does not arise out of a breakdown in a relationship or family violence.
The extent of compliance with visa conditions
The applicant came to Australia on a grant from the Brazilian government, but says that he always intended to study in Australia. As has been set out above in these reasons, the Tribunal does not put any weight on the late application for the Student visa. However, once the Student visa was granted, the applicant did not complete any of the courses for which the visa was granted. He stopped studying just under a year into 4 years’ of study. By his own evidence, he was struggling to pay his education fees prior to his equipment being stolen. He did not contact the Department when he knew he was having difficulty with his fees, and neither did he contact the Department when his equipment was stolen. By the time his visa was cancelled he had not been studying for about 9 months.
He has not made enquiries of the possibility of him returning to study with the Department, despite the fact that, as he told the Tribunal, he is now in a good place and ready to go back to study. By the time of the hearing, he had not been studying for over 2 years. While the applicant appeared to be submitting that although he was not studying, he came to Australia to serve the Brazilian community in Australia, and continued to do so despite him not studying after the visa was cancelled, serving the Brazilian community in Australia was not a condition of his visa, and has nothing to do with what he said he always had wanted to do, which was study business in Australia. While he has usefully filled his time while not studying, the fact remains that he has not completed any of the courses he applied for the visa to complete, as has been discussed elsewhere in these reasons, without any real excuse at to why.
The applicant said that he started working here for other Brazilian people videographing for them. He told the Tribunal he commenced this work as soon as he received his Student visa. He said at one point in the hearing that he has maintained that work and has also been working for Breville, and a group of universities and he has his own business for postproduction and editing of videos. He is also a freelancer for a production company, MGB Productions. He has also been working as a musician. However, he also said that at one point he neglected his other businesses to play music. He is currently on a Bridging visa - this allows him to work 20 hours per week. There is nothing before the Tribunal to suggest that he is not complying with the work limitation.
While there is no evidence that the applicant has not complied with other visa conditions, the combination of the time between the cancelation of his enrolment and the cancelation of his visa, and his lack of, as the Tribunal has found, any real explanation as to why he could not pay his fees, and why he stopped attending classes, results in a finding that the breach is significant, and weighs heavily on the Tribunal’s discretion to cancel.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
At the hearing I asked the applicant twice whether there would be hardship if his visa is cancelled. He said he does not want to be illegal in Australia, and nor to return with the sensation that he has failed and had wasted 4 years, particularly that he has given time to the Brazilian community here who were crying for help. He said it would be a horrible feeling of failure.
He said he is now in a good space, and he would like to go back to study, so that when he returns to Brazil he will have a certificate in business which will help him there. He said he already has technical knowledge about running a business, but an international qualification will assist him in business in Brazil.
The Tribunal accepts that the cancelation of a visa is disappointing and that a significant amount of money is invested in order to set a person up in a country to live independently in order to study, and the applicant has put time into the Brazilian community here, which may be wasted if he cannot continue. The Tribunal gives this consideration a little weight towards the visa not being cancelled.
However, the applicant is an independent adult who, on his own evidence, ran businesses in Brazil and in Australia, having a number of other qualifications. He told the Tribunal, as has been set out elsewhere in these reasons, of his accomplishments in Brazil, and the Tribunal is not satisfied that he will suffer any particular hardship should he return to Brazil without a business certificate from Australia. The applicant is currently on a Bridging visa, and will not be illegally in Australia providing he leaves Australia in accordance with the requirements of the Department should the visa remain cancelled. There is no doubt that if he chose to remain here illegally, he may suffer hardship, however, that would be his choice, and as is pointed out below in these reasons, it would only be if he does not co-operate with the authorities that he would invoke the threat of detention.
While there may be general hardship in the form of wasted expense and time and input into Australian life, given that the Tribunal is satisfied that the applicant is otherwise an educated, independent and experienced worker, that general hardship will have limited impact on the applicant. The extent and significance of the breach outweigh any such general hardship, and that weighs in favour of the visa being cancelled.
Past and present behaviour of the visa holder towards the department
The applicant agrees he did not respond to the Notice of Intention to Consider Cancelation. He said that he replied to the Department’s initial email asking for his address, however at that time he did not have the financial capacity to obtain a lawyer and he felt his English was not good enough. He felt under psychological stress about the impending cancelation, so although he drafted responses, he never sent them. The Tribunal gives this some weight in his favour.
There is nothing before the Tribunal to indicate any adverse conduct by the applicant towards the Department and as such the Tribunal gives this some weight against cancelling the applicant’s visa.
Whether there would be consequential cancelations under s.140
This factor is not relevant to this applicant.
Whether there are mandatory legal consequences, such as whether cancelation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancelation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the current visa is cancelled, this will result in the following:
a.The applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;
b.The applicant will have limited options to apply for further visas in Australia;
c.The applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Requirement 4013 to be met.
I give little weight to this consideration in favour of the applicant because:
·These are the intended consequences of the legislation when a visa is cancelled under these grounds;
·It reflects the seriousness with which the Department takes this type of cancelation ground;
·The applicant will be eligible to apply for a bridging visa while he makes arrangements to depart Australia and therefore the likelihood of detention is only in the event that he does not co-operate in applying for a bridging visa.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancelation
In this case it does not appear that this consideration is relevant as the applicant did not indicate that there was any reason he cannot return to Brazil and he has not made any claims which would relate to this consideration. The Tribunal places no wait on this in favour of the applicant.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
This factor is not relevant to this applicant.
Any other relevant matters.
The applicant told the Tribunal at the hearing that shortly before the hearing he had been driving in New South Wales and come upon a car crash. He said that he was the only one that stopped to assist, having to put out a fire in the car. He received a commendation for that action. The Tribunal accepts that the applicant was courageous and community minded in that action and accepts that this shows a desire to be part of the Australian community. The Tribunal gives this a little weight in his favour.
The applicant also told the Tribunal that in November 2017 he became president of Brazilian Community Council of Australia. He had heard the Vice President in an interview with SBS seeking nominations for the presidency. The organisation was formed to organise shows for the newly arrived Brazilians. The shows were of low quality, but aimed to gain as much profit as possible. He wanted to focus on expatriates who were living here. He thought he could try to bring high quality bands here from Brazil. He consulted with the past president of the council. He had not held any other office before he became president, but had been a volunteer for 3 months there, then he was a volunteer as a musician for events organised every 6 months. He wanted to show that the focus of the council should be on expatriates living here, rather than those newly come to Australia. He thought he could assist the organisation, and nominated. He went to the Brazilian consulate and explained that he should be the President. He was voted in unanimously. He then consulted with the past president, and they discussed the future of the organisation.
The board were aware of his contacts globally, however they did not know him personally, or his values, and he believes subsequently, after he was elected, conflict occurred. He felt that the board wanted to organise networking events and not actually give the community here opportunities to expand and go to quality events. He was accused of having a conflict of interest, because he was a musician. Approximately mid-way through 2018 he was stood down as president.
At first in his evidence, the applicant put forward the turmoil he had experienced in relation to the presidency of the organisation as a reason as to why he had not attended classes, however, I put to the applicant that the problems he had with the presidency did not effect his enrolment, because he was not actually enrolled then. I am satisfied that the applicant understood the issue I had raised and he agreed that the cancelation was not connected.
Given that all of the work he did for the council as president, and the difficulties he had on the board occurred after his visa had been cancelled, the Tribunal is not satisfied that any of those difficulties have any bearing on the cancelation, or the reasons for the cancelation, and can give them no weight in that regard.
However, in exercising its discretion, the Tribunal may take into account other factors it considers relevant to whether the visa should be cancelled. It is not clear from the applicant’s evidence why he felt that his volunteering in various positions with the council was relevant to the Tribunal’s discretion, other than perhaps he wished to make it clear that he was a committed member of the community. The Tribunal does not doubt he is committed to his Brazilian community, and has committed hours to volunteering, and is a good member of the community in Australia. Along with his commendation for assisting in the road traffic crash, the Tribunal accepts that the applicant is a person of good character and committed to the community. The Tribunal gives this a little weight in his favour, however, given the findings made in relation to the cause of the cancelation of his enrolment and his lack of compelling reason to remain in Australia, his character does not outweigh those factors.
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.
Genevieve Cleary
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.

[2020] AATA 2700

1 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction