Marongiu (Migration)

[2019] AATA 860

Marongiu (Migration) [2019] AATA 860 (21 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Davide Marongiu

CASE NUMBER:  1621320

HOME AFFAIRS REFERENCE(S):           BCC2016/3117295

MEMBER:Wendy Banfield

DATE:21 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 21 January 2019 at 8:41pm

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 – degree of hardship – circumstances giving rise to ground for cancellation – parents’ health – stress and depression – period of non-enrolment – 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

1. This is an application for review of a decision dated 7 December 2016 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 been enrolled in a registered course of study from 12 October 2015 until the date of cancellation on 7 December 2016. The applicant had been advised the Department was considering cancellation through a Notice of Intention to Consider Cancellation (NOICC) issued on 18 October 2016. He responded on 19 October 2016 and set out claims regarding his failure to maintain enrolment. The Department assessed the applicant’s case and decided to cancel 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.

   Background

3. The applicant is a citizen of Italy and is currently 34 years old. He arrived in Australia on 5 March 2012 as the holder of a Subclass 417 working holiday visa. The applicant was then granted a Subclass 572 visa to allow him to undertake vocational studies in Australia. The applicant’s parents reside in Italy and he is an only child.

4. The applicant appeared before the Tribunal on 31 October 2018 to give evidence and present arguments.

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

   Evidence of the visa applicant

6. The applicant submitted documentary evidence to the Tribunal. This included a written submission dated 31 October 2018, evidence of the applicant’s studies in Australia, evidence of the applicant’s parents’ disability and medical issues, a psychologist’s report dated 13 December 2016, a GP referral and a statutory declaration dated 14 December 2016. The applicant also submitted a statement after the hearing on 12 November 2018.

   The hearing

7. The applicant confirmed he came to Australia in March 2012 to visit and to study English. He said he was hoping for a better life as Italy is getting worse and worse. The applicant held a working visa and stated he was able to practice English then. The applicant was granted a student visa on 31 July 2014 and began studying a Certificate III in Business. He also enrolled in a Marketing course but decided to study IT instead.

8. The applicant explained that his parents in Italy are deaf and he is an only child. He said his father suffered a stroke in 2011 and in 2015 fell and suffered a fracture. The applicant said it  was difficult for him since he was in Australia at the time. For this reason he left Australia from December 2015 to April 2016 to help his parents return to normal. The applicant said on his return to Australia he was distracted from his studies, became depressed and had been unable to find a job. He referred to having received a NOICC letter from the Department as a result.

9. Regarding future plans, the applicant said he had been a carpenter with experience in construction and wanted to establish his own business. He said he would like to stay in Australia. He acknowledged he had made mistakes in the past and did not dispute he had not maintained enrolment as required of student visa holders. According to the applicant he had a girlfriend in Australia who is studying English and if his visa is cancelled he would have to stop studying.

10. The applicant stated he had a compelling need to remain in Australia because it is the right country for him to study. He said if he obtains the right qualifications he will be able to return to his home country and cancellation of his visa will have a significant impact.

11. The Tribunal asked the applicant why his father’s health issue had led to him not being enrolled. He said because he is an only child, he spent all his time on the phone or on video calls with his parents. While his parents have carers, the applicant said he still has to help with everything and although his responsibilities took him away from his studies, his family had to come first. The applicant agreed he had made a mistake in not arranging formal leave with his education provider.

12. The applicant said he has been working 20 hours a week as a carpenter and that the last two years have been hard. He said he half wants to leave and half wants to stay. The applicant explained that while holding a bridging visa he had been unable to travel. He asked that he be given another opportunity and will not make any further mistakes.

13. 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

14. 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?

15. 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).

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

17. In 2015 the applicant had been enrolled to study a Business course but in October of that year, his education provider advised the department that he had ceased studying. In December 2015 the applicant departed Australia to return to Italy and remained off-shore until April 2016. On 18 October 2016 the Department issued a NOICC letter and the applicant responded on 19 October 2016. After considering the applicant’s response, the delegate decided to cancel the applicant’s visa as of 7 December 2016 as he had not been enrolled to study for an extended period of time. 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

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

19. The applicant arrived in Australia in 2012 first on a working holiday and then as a student. He enrolled in a number of courses in the fields of Business, Management, Marketing and IT. Although the applicant failed to complete most of the courses he started, the Tribunal is satisfied that his original intention to travel to and stay in Australia was to study.

20. The applicant made submissions regarding his wish to continue studying because he plans to start his own carpentry business. The Tribunal has carefully considered the evidence before it regarding the applicant’s claims in this regard. While the applicant may want to continue his studies in Australia, his claims about his future endeavours were general in nature and unsupported by independent evidence. The applicant did not explain why he considers it necessary to study in Australia to be able to put his stated carpentry business plans into action. As such, he has not demonstrated a powerful or convincing reason for needing to stay in Australia. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia and places no weight on this consideration.

    ·     the extent of compliance with visa conditions

21. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this aspect some weight in the applicant’s favour.

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

22. During the hearing the applicant claimed he would suffer hardship if he is not able to continue studying. The Tribunal acknowledges that the cancellation of the visa would mean the applicant would not be able to resume his studies in Australia and this may cause a degree of financial, psychological or emotional hardship. The applicant submitted he suffered depression and anxiety due to his family problems, a lack support in Australia and the difficulty of the courses which the Tribunal accepts was the case. He submitted a psychologist’s report that states he had attended monthly sessions since April 2016. Nevertheless, the applicant has not demonstrated a significant level of hardship that would result if his visa is cancelled. He has spent more than six years in Australia on a working holiday and as a student allowing him to improve his English and acquire other skills. The applicant has only completed one vocational course since his arrival in Australia On his own evidence the applicant has a background in carpentry/construction as well as a work history in Italy and Australia that will assist him in future. The Tribunal considers the weight of evidence is against the applicant in this regard.

23. 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

24. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for a 12 month period. The applicant’s reasons were that his parents are hearing impaired and his father suffered health issues that required his assistance. Evidence was submitted supporting the applicant’s claims that his parents have a disability but the documents indicate his parents are independent and do not require support from others. Although evidence was submitted to support the claim that his father had previously suffered a stroke and attended hospital for x-rays due to an injury, the applicant did not provide details of the care he claims they required from him or why he decided to come back to Australia when he was not in a position, mentally or financially, to commit to his studies. 

25. In a written statement received post-hearing, the applicant claimed he was suffering from undiagnosed depression and anxiety at the relevant time and was also finding his studies difficult due to the complexity of the courses and difficulties with English. He acknowledged he had failed to complete a number of courses of study but submitted there were extenuating circumstances that led to his non-compliance with visa condition 8202. The applicant’s psychologist noted he had failed to maintain enrolment because he was unable to cope with the stress of a new environment; he missed his family, was unable to find employment in Italy and England and therefore returned to Australia despite being depressed and feeling helpless. At the time the applicant was “financially broke” until he found employment in Australia but thereafter could not cope with work and study. It was only when he began a new relationship that he started to recover. The psychologist states:

    It is imperative that Mr. Marongiu be allowed to stay in Australia, as he is finally adjusting and slowly establishing himself here. The prospect of having to leave brings him much desperation and loss, exacerbating his depressive symptoms.

26. The Tribunal has considered the circumstances that gave rise to the grounds for cancellation as presented in various forms of evidence. The student visa programme enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. They are required to be a genuine student whose primary aim is to study. If the applicant faced significant problems as he claimed it was open to him to formally postpone his studies until he had an opportunity to manage his personal affairs. The Tribunal does not accept that he was unable to evaluate the significance of having to continue to study in terms of his visa, as stated by the psychologist. In this regard the Tribunal notes the psychologist’s report is a brief letter summarising the applicant’s circumstances as he reported them. It is not a comprehensive report or a detailed assessment of his mental health. The Tribunal does not agree with the conclusion by the psychologist that it is imperative the applicant be allowed to stay in Australia.

27. The applicant could also have availed himself of help from his education provider if he was experiencing difficulties with the course content. The issues faced by the applicant are part of the vicissitudes of life that most people encounter at some point. Although they may be stressful events they are not adequate reasons for the applicant to stay in Australia while failing to comply with the conditions of his student visa over a long period of time.  

28. 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 study or seek a deferment of his studies while he dealt with personal problems in his life. 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

29. 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

30. 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

31. 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

32. 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

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

    ·     any other relevant matters

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

    Conclusion

35. 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 purpose of a student visa is for visa holders to study in Australia and achieve academic progress. 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 personal problems the applicant may have encountered are sufficient reason for the visa not to be cancelled.

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

    DECISION

37. 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.