Mariano (Migration)

[2019] AATA 6150

Mariano (Migration) [2019] AATA 6150 (22 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Robinson Arnold Aparecido Mariano

CASE NUMBER:  1713663

HOME AFFAIRS REFERENCE(S):           BCC2017/1723250

MEMBER:Wendy Banfield

DATE:22 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 22 October 2019 at 7:41pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – did not maintain enrolment – enrolment cancelled – family issues – could not afford cancellation fee – inadequate reasons for non-compliance – decision under review affirmed   

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 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 had not maintained enrolment in a registered course of study as required by the conditions of his Student 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.

   Background

3. The applicant is a citizen of Brazil and is currently 28 years old. He was granted the Student visa that is the subject of this review on 14 July 2015. 

4. The applicant appeared before the Tribunal on 2 September 2019 to give evidence and present arguments.

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

6. Prior to and at the time of the hearing the applicant submitted the following:

   ·     Representative’s written statement received 2 September 2019;

   ·     Death Certificate (with English translation) for the applicant’s grandmother;

   ·     Dentist Certificate (with English translation) in the name of the applicant;

   ·     Email correspondence between Australian Pacific College and the applicant dated September 2016;

   ·     Applicant’s passport details and flight itinerary;

   ·     Psychologist’s letter (with English translation) dated 17 July 2017.

7. The applicant submitted a response to the Department’s Notice of Intention to Consider Cancellation (NOICC) dated 16 June 2017 which has been taken into account in this decision.

   The hearing

8. The applicant advised he came to Australia to study English and to update his skills for a good future in his home country. He had previously worked in construction for his parent’s company and had studied Accounting in Brazil. He was interested in gaining certificates related to construction and has undertaken courses in Marketing and in Project Management. Now he is studying ‘Waterproofing’ at TAFE having begun the course in February 2019. It is due to be completed in July 2020 and is full-time.

9. In 2016 when the applicant had to return to Brazil he was studying Project Management. According to the applicant he had almost completed the course but it was cancelled when he went back to his home country. He had returned to Brazil because his grandmother was ill and while he was there, she passed away. He also had to have dental surgery which delayed his return. The applicant explained he had been sent an email by his education provider informing him of the need to attend a meeting. He said he advised the college he was in Brazil and explained his situation, however, when he returned to Australia his enrolment had been cancelled. When asked whether he sought leave to return to Brazil the applicant said he had not because it was during a semester break however, he had been required to submit assessment which he paid for but had not submitted.

10. The applicant claimed he was not able to re-enrol in the same college after his COE was cancelled and told him he would have to enrol elsewhere. He then had problems enrolling elsewhere because he did not have a letter from his former college. The applicant agreed he had known he was in breach in visa conditions. The Tribunal put it to him that since he still had a Student visa, he should have been able to enrol somewhere in order to remain compliant. He said he was suffering difficulties following the loss of his grandmother.

11. Regarding the period in which the applicant was not enrolled, he said he had gone to colleges to try and re-enrol in February 2017 but without the letter from his former college, he was not accepted. He said TAFE told him he would have to wait until a later semester as some courses are only offered every six months. The applicant accepted he was not enrolled to study for the relevant period.

12. The applicant was asked whether he had a compelling need to remain in Australia. He said he needed to update his skills as it would help him in his home country, in particular, because he was studying in English. The Tribunal put it to him that he could study English in Brazil but he said although he had done so in his home country, it was not enough. After completing his current course, the applicant said he may want to go to university to study engineering or architecture. The applicant stated he had not breached any other visa conditions. As to the degree of hardship that would be caused by his visa being cancelled, the applicant referred again to wanting to study in Australia to update his skills which would help him in future.

13. The applicant confirmed no one else holds a visa that is dependent on his visa and he does not have a partner or children. The Tribunal referred the applicant to the legal consequences of his visa being cancelled and the fact that he may be prevented from applying for another visa to Australia for a three year period. The applicant did not wish to make any comment on these criteria. The applicant declared he did not have any civil or political issues in his home country such that Australia would have any international obligations in his case. In conclusion, the applicant said that since coming to Australia he had tried his best and wanted to grow in life.

    Representative’s submission

14. The representative said the school failed in their duty of care to the applicant as they did not inform him about leave and he was unable to enrol in another school because he did not have $500 for a release letter. She said in Australia colleges should make it clear to students that if they go away due to a death in the family or similar, that the course can be suspended and they can come back. It was submitted that on the college’s website there are instructions that say just that. The Tribunal put it to the applicant that it was his responsibility to make leave arrangements but he had not informed the college beforehand. He agreed but said once he was contacted by email, he did tell them his situation then went to the college on his return and was willing to submit the required assessment.

15. The representative said it there can be misunderstandings due to international students lacking English. She said the applicant could not read the information about provision for compassionate leave and it should actually be explained during induction. The representative went on to say she did not know how the college in question operates.

16. 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

17. 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?

18. 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).

19. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

20. The applicant did not dispute the Department’s finding that he was not enrolled to study from 22 October 2016 until 9 June 2017 when a Notice of Intention to Consider Cancellation (NOICC) was issued and that there were grounds to cancel his Student visa. 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

21. 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 and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

22. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

23. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant explained his ongoing reasons for studying in Australia which are that he needed to update his skills. He claimed his studies in Australia that are conducted in English would help him in his home country.

24. The applicant gave evidence in very general terms about wanting to continue studying in Australia in order to update his skills which he believed would improve his employment prospects. As such, the applicant has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

25. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

26. At the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. In response the applicant made the same claims about wanting to study in Australia to update his skills which would help him in future. He did not refer to any specific financial, psychological or emotional hardship; however, the Tribunal accepts there would be some degree of hardship caused to the applicant due to cancellation of his Student visa.

27. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation 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 cancellation arose were beyond the visa holder’s control

28. The applicant’s visa was cancelled because he remained in Australia as the holder of a Student visa but was not enrolled to study for a period of seven months. The applicant provided some reasons for this. He explained that during a semester break he returned to Brazil because he had learnt his grandmother was ill. She passed away while he was there, on 23 September 2016 and his mother became unwell due to the loss. The applicant then had to undergo a dental procedure and these issues led to him extending his stay in his home country for longer than he had originally planned. He said when he returned to Australia his enrolment had been cancelled because he had not submitted items of assessment as required.

29. The applicant submitted an email his education provider sent on 22 September 2016 while he was in Brazil to inform him he was not meeting the course progress requirements. In its email to the applicant the college advised:

    Because of this you are required to attend an intervention meeting at the college. At this meeting we will discuss your reasons for not meeting course progress, re-assessment options available to you, the suitability of your course and strategies for the next study period.

    To commence this process you will need to
    1) Attend our Holiday Intervention Program or contact the college as soon as possible to make an intervention appointment…

30. The applicant replied to the college by email on 27 September 2016 stating his grandmother had just passed away and he was scheduled to have dental surgery on 28 September 2016 (the next day). The applicant stated “But when I back to Australia next 26/10, I will be there to talking and show this certificate.” (based on the applicant’s flight information submitted in evidence he actually returned to Australia on 23 October 2016).

31. It is clear the education provider offered the applicant an opportunity to address his academic issues at an intervention meeting; he was told that re-assessment options may be available to him and that he should either attend a Holiday Intervention Program or make an intervention appointment. From the evidence before the Tribunal it appears the applicant did not avail himself of any of these options. In his email response he did not ask for an intervention appointment and although the college contacted him on 22 September 2016, he advised them on 27 September that he would not be returning to Australia for another month. If his education was important, the applicant could have returned to Australia earlier. The Tribunal does not accept the claims made by the representative that the education provider failed in its duty of care to the applicant because they did not inform him about the availability of compassionate leave. It was the representative who pointed out that the college’s website has instructions that say just that. It is also not accepted that the applicant’s access to information was disadvantaged by a lack of English. The applicant is clearly able to speak, read and write in English and as well as accessing his education provider’s website, it was open to him to make inquiries by phone or in person about his situation before he left Australia.

32. The applicant further claimed that on his return to Australia, upon finding his enrolment had been cancelled he could not re-enrol anywhere else because he could not afford a fee of $500 to pay for a cancellation letter from his education provider. It is the responsibility of Student visa holders to ensure they have the means to support themselves in Australia and if they are not able to continue studying for financial or other reasons, they should defer their studies and depart Australia until they are in a position to continue.

33. The Tribunal sympathises with the applicant regarding his personal problems; in particular his grandmother’s ill health and death in 2016. Although this was no doubt a stressful event it is not an adequate reason for the applicant to stay in Australia while failing to comply with the conditions of his student visa and failing to study at the relevant time. The applicant’s education provider had a mechanism that allowed him to apply for compassionate leave in such circumstances and it was his responsibility to apply for leave before he departed for Brazil.

34. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to seek a deferment of his studies or maintain enrolment as required in breach of visa conditions. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

35. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

36. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

37. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.

    ·     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 cancellation

38. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

39. The Subclass 572 Student Visa is not a permanent visa.

    ·     any other relevant matters

40. There are no other relevant matters to be considered in the applicant’s case.

    Conclusion

41. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

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

    DECISION

43. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Wendy Banfield
    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.