Martinez Ceballos (Migration)

[2024] AATA 3077

Martinez Ceballos (Migration) [2024] AATA 3077 (9 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Daniela Martinez Ceballos

CASE NUMBER:  2303655

HOME AFFAIRS REFERENCE(S):          BCC2022/4247802 

MEMBER:Penelope Hunter

DATE:9 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 09 August 2024 at 2:33pm

CATCHWORDS 
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant did not comply with condition 8202 – was not enrolled in a registered course – financial and mental problems – emotional and psychological hardship – has suffered a psychological illness – applicant has consistently engaged in her studies since February 2023 – a compelling need for the applicant to remain in Australia – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 375

Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 March 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant was found not to have complied with a condition of her visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 22 July 2024 via MS Teams video  to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

6. The applicant is a 32 year old citizen of Colombia. She was granted the visa on 5 November 2020 to undertake study in Australia. This visa was subject to conditions including condition 8202.

7. On 6 February 2023, the applicant responded to an email requesting contact details from the Department, stating that she had obtained an offer letter from Valley International College in an Advanced Diploma of Civil Construction Design. She provided a copy of the letter of offer and a letter of submission in relation to her circumstances and the reasons for the suspension of her studies.

8. On 7 February 2023, a delegate of the Minister wrote to the applicant and provided a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act, as the applicant’s Provider Registration and International Student Management System (PRISMS) records indicated that she had not been enrolled in a course of study since 16 November 2021. The applicant was informed that this may be a ground for cancellation of her visa and she was invited to comment on why the grounds for cancellation may not exist.

9. The applicant provided a response to the NOICC with further statements addressing her circumstances. The applicant also provided documents in support including a copy of a Confirmation of Enrolment (CoE) in a an Advanced Diploma of Civil Construction and Design created on 9 February 2023, a certificate of psychotherapeutic process from Sthepany Montanez Hernandez dated 10 January 2023, a death certificate and translation in respect of Martinez Lope Willian Fernando.

10. In her statement the applicant set out the following circumstances (in summary):

    i.In 2021 due to the impact of the COVID-19 pandemic in Melbourne, she lost her job and began to experience financial and mental problems. Her family was also unable to provide her with financial support as a consequence of the pandemic. In addition, the loss of her uncle impacted her and she relapsed into severe depression.

    ii.She has undertaken treatment for her depression with a psychologist in Colombia via Zoom. She has also moved to the Gold Coast, which was a city least affected by the pandemic, and here she was able to start work to assist with her financial support.

    iii.She attempted to transfer her course from Danford College in Melbourne, but as they did not have a campus in Queensland she faced financial penalties on withdrawal. In order to obtain the required release, Danford College had requested that she pay them the sum of $20,000 being the entire costs of her course. She could not reach an agreement with them and had to begin again the process of saving to commence a new course. By November 2022, she had made a payment of $7,000 to Danford College and had negotiated with them for a lesser fee of $10,100. She made the final payment on 2 February 2023 to obtain a release so she could commence her studies again on the Gold Coast.

    iv.She had obtained a CoE in an Advanced Diploma of Civil Construction. She was an architect by profession and her course fitted perfectly with her background and intellectual goals.

11. The delegate reviewed the applicant’s submissions however, the delegate regarded the applicant’s 14 month period of non-enrolment as substantial and determined after considering relevant circumstances that the visa should be cancelled.

12. On 14 March 2023, the Tribunal received an application for review from the applicant. The applicant also submitted a copy of the decision record of the delegate, a CoE in the Advanced Diploma of Civil Construction Design created on 4 April 2023 and a statement of submission. In her statement the applicant set out the following relevant information (in summary):

    i.When she arrived in Australia she was excited to undertake an English course, and after it was finished she chose to apply for another visa to extend her technical knowledge. She enrolled in a Diploma of Project Management in 2019 at Australian Pacific College. Halfway through her course she decided to change education providers because the course was not meeting her expectation.

    ii.She sought advice from her education agent and applied for the same course but with an education provider that had more intensive classes, Danford College. This was one reason for a past cancellation of her enrolment. 

    iii.She transferred some of her credits to Danford College but her study of the diploma was interrupted as she had a serious accidence and fractured her spine. This injury left her with severe mobility and psychological problems. The recovery process took her 5 months.

    iv.She then returned to studying the diploma and after meeting with advisors from her education provider discussed her interest in studying the Advanced Diploma of Civil Construction Design instead of the Advanced Diploma of Project Management as it was more relevant to her career as an architect. For this reason the applicant again had a new enrolment issued.

    v.The applicant repeated her claims that while studying the Advanced Diploma of Civil Construction Design her family experienced financial problems and she lost her job, all as a consequence of the COVID-19 pandemic. She claimed that she again fell into depression.

    vi.She relocated to the Gold Coast, where Danford College did not have a campus. They only provided her with the option of paying $20,000 for a release. Her mistake was not asking or seeking help. She was scared and Danford College was sending her legal emails demanding payment of $20,620. They refused her initial offers of a lesser payment however eventually agreed to accept $10,100. She spent a number of months without studying because she had to earn the funds to pay for her release. She acted in innocence and thought her only solution was saving money, she did not realise that it would take her that long.

    vii.When she was contacted by the Department she had already made enquiries about returning to study on 20 February 2023, as she was still to make her last payment to Danford College. She brought this forward when contacted by the Department.

    viii.Her plans in Australia were to grow intellectually and professionally. She has had some setbacks but had overcome them. She lost one of her closest relatives in Colombia due to COVID. She requested the opportunity to finish her course and not to have to return to Colombia without completing her course after she has spent a considerable sum already on the qualification.

13. On 22 July 2024, the applicant submitted a screenshot of her course progress with Acknowledge Education.

14. On 23 July 2024, the applicant submitted the following documents:

    i.A student academic report setting out the applicant’s progress in the Advanced Diploma of Civil Construction Design, dated 23 July 2024.

    ii.Letters of demand from Lewis Holdway Lawyers regarding fees to Danford College dated 13 January 2022 and 8 February 2022, and notice of intention to commence court proceedings.

    iii.Screenshots of emails between the applicant and Danford College regarding fee payment, dated 14 April 2022, 27 April 2022 and 10 November 2022.

    iv.Receipts for the payment of fees to by the applicant to Danford College.

    v.A letter of offer in the Advanced Diploma of Civil Construction Design from Acknowledge Education dated 12 April 2022.

    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 full time registered course: 8202(2)(a)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

17. The applicant confirmed to the Tribunal that she was aware that it was a condition of her visa grant that she maintain enrolment in a registered course of study.

18. In submissions to the Department, and also to the Tribunal, the applicant did not dispute that she was not enrolled in a course of study between 16 November 2021 and 9 February 2023. She also confirmed this was the case in her oral evidence at hearing.

19. Therefore, on the material before it, the Tribunal is satisfied that as applicant was not enrolled in a full time registered course between the period 16 November 2021 and 9 February 2023. Accordingly, the Tribunal finds that the applicant did not comply with condition 8202(2)(a).

20. As the applicant has failed to comply with the visa condition, the ground for cancellation in s 116(1)(b) does arise.

    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 Procedural Instruction ‘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. The applicant was granted the visa in order to undertake study in a Diploma of Project Management and an Advanced Diploma of Civil Construction Design. The applicant acknowledged that her study pathway had experienced some setbacks. While holding her first student visa she decided to change education providers and she also suffered a fractured vertebra following a fall in October 2019, which left her hospitalised for several weeks followed by an extended recovery time.

23. It is acknowledged that the applicant finished her study in the Diploma of Project Management as intended. She reports that her studies in the Advanced Diploma of Civil Construction Design were disrupted due to the COVID-19 pandemic. This had financial and mental consequences for the applicant. On the evidence, it is however, accepted that the applicant paid a considerable sum of Danford College in relation to the courses she had enrolled in.

24. While awaiting review the applicant has been permitted to study and she has continued with her enrolment in the Advanced Diploma of Civil Construction Design. The applicant has provided evidence that she has complete 75% of her course and has only 3 subjects remaining before she attains the award of the qualification. The Tribunal accepts that the qualification is related to the studies in architecture that the applicant completed in her home country. The applicant maintained at the time she applied for the visa that her courses will enhance her career and improve her remuneration prospects in her profession in her home country. She has spent a considerable time engaged in the pursuit of the qualification and in addition to the $10,100 she has paid to Danford College, has invested a further $22,000 in a new course which is nearing completion.

25. On the evidence it appears that the applicant genuinely desires the qualifications that she intended to undertake while holding the visa. She has invested in her courses and has only three subjects and a few months remaining of her course. The applicant assured the Tribunal that it was her intention to return to her home country on the completion of her studies. Given her experiences to date, and the substantial progress that the applicant has made in her course, it is accepted that the applicant does have a compelling need to remain in Australia to complete her course.

26. On balance this factor weighs against the cancellation of the visa.

    The extent of compliance with visa conditions

27. As set out above the duration of the applicant’s non-compliance was considerable from November 2021 to February 2023. The applicant was acknowledged that she was aware it was a condition of her visa that she maintain enrolment. The duration of the applicant’s non-compliance is a matter of considerable concern and engaging in study goes to the core purpose of the visa.

28. There is no evidence before the Tribunal that the applicant has not complied with any other conditions of the visa under consideration.

29. The Tribunal considers that this factor weighs in favour of the cancellation of the visa.

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

30. If the visa remains cancelled, and if she is required to depart Australia, the applicant will be unable to complete her course. It is accepted that in these circumstance that the applicant will experience financial hardship and having expended a significant sum in the pursuit of her advanced diploma, initially at Danford College and now with her current education provider, Valley International College.

31. The Tribunal further acknowledges and accepts the claims of the applicant that if the visa remains cancelled, and if she is required to depart Australia it will also cause emotional and psychological hardship to the applicant. She explained to the Tribunal that she has experienced several set backs with her injury to her back, then the financial and psychological disruption of the pandemic, followed by her difficulties servicing the debt to Danford College. There is evidence from the applicant’s psychologist that she has required treatment in the past. It is accepted that she has suffered a psychological illness and that she has engaged in considerable treatment to date to improve her condition and her overall wellbeing.

32. On balance this factor weighs against the cancellation of the visa.

    The 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

33. According to the applicant, the factors that gave rise to her enrolment being cancelled in the first instance occurred due to the COVID-19 pandemic. The applicant maintains that she lost her employment and that her family were suffering financial difficulties and that she was unable to make payment of her fees to Danford College. The Tribunal accepts that the COVID-19 pandemic was an event outside the control of the applicant and that it had global financial consequences.

34. As to the duration of the applicant’s non-enrolment she has written in her submissions and further gave evidence to the Tribunal about the depression that she fell into as a consequence of her financial difficulties, her fear for her family, the death of her uncle and the duration of lockdowns and restrictions of movement she endured in Melbourne in 2020/2021. The applicant has presented evidence that she sought treatment from a psychologist from June 2021, commencing with weekly consultations and progression to bi-monthly treatment as of December 2022. The applicant has also submitted a death certificate, corroborating her claims of the death of her uncle due to the COVID-19 virus. It is accepted that these factors impacted on the ability of the applicant to engage in study.

35. The Tribunal has also had regard to the claims of the applicant that she could not re-engage with study once she moved to Queensland in 2022 because Danford College would not provide her with a release until all fees were paid. The Tribunal considers that the applicant had control about whether or not she relocated to Queensland. It accepts that she wished to depart Melbourne given her past experiences of extended lockdowns, however the applicant appears to have relocated with little practical assessment of how she would be able to resume her studies.

36. The applicant told the Tribunal that she had attempted to re-engage in study in Queensland but was unable to complete an enrolment because she had not obtained a release from Danford College. Upon review the applicant has provided evidence of her communications with Danford College attempting to negotiate a release over several months, as well as correspondence from Lewis Holdway Lawyers which confirm her claims that she was initially being pursued for the entirety of her course fees from Danford College. The applicant has also provided receipts for payments of these outstanding fees, which corroborate her claims that she was attempting to discharge this debt so she could proceed with a new enrolment. Further, she has presented evidence that she obtained a valid offer of enrolment from Acknowledge Education in April 2022, and was attempting to re-engage in studies in Queensland from this date. This corroborates the claim of the applicant that it was always her intention to resume her studies. The evidence the applicant has presented to the Tribunal and the fact that the applicant has consistently engaged in her studies in the Advanced Diploma of Civil Construction Design since February 2023, demonstrate that the applicant did not just re-enrol for in an attempt to avoid cancellation of the visa by the Department.

37. On the evidence the Tribunal accepts that the circumstances that led to her enrolment ceasing were to a large extent outside her control. It is also accepted that she genuinely intended to return to her studies but was delayed due to the financial consequences of her enrolments being cancelled at Danford College.

1. On balance the Tribunal considers that this factor weighs against the cancellation of the visa. 

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

2. There is no evidence that the applicant has not been cooperative in her dealings with the Department.

3. The Tribunal gives this factor some weight in favour of not cancelling the visa.

   Whether there would be consequential cancellations under s 140

4. The applicant is single with no dependants. She was in a de facto relationship when she applied for the visa. Her de facto is not a dependent member of her family unit for the purposes of the visa application. In any event, the applicant told the Tribunal that this relationship ended several years earlier.

5. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa remained cancelled. There is no weight attributed to this factor.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

6. There are mandatory legal consequences that may apply in the case of visa cancellation, including a difficulty obtaining a further visa. If the visa is cancelled the applicant may be subject to a restriction under s 48 of the Act and the applicant would have difficulties obtaining any further visas in Australia. Due to the operation of PIC 4013, the applicant would also be unable to be granted further visas offshore for three years from the date of cancellation. The applicant said that she just wanted to complete an Australian qualification and if the visa remained cancelled she would lose this opportunity and she also had many friends now on the Gold Coast and she was concerned she would not be able to see them in the future.

7. The applicant also told the Tribunal that if the visa remained cancelled and she had exhausted or ceased all lawful avenues of review, he would abide by any lawful direction to depart. The Tribunal is satisfied in these circumstances that the likelihood of the applicant being detained is remote.

8. It is accepted that cancellation would have further consequences and these would limit her options to immediately return to Australia or applying for a different kind of visa. This however is the intended consequence of cancellation.

9. The Tribunal gives this factor this neutral weight.

   whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

10. The applicant is a citizen of Colombia. The Tribunal asked the applicant if she had any fears about returning to her home country and she claimed that she did not. She advised the Tribunal that her mother had cancer treatment while she had been in Australia and was eager to return to her family to spend time with them. The applicant has not made and claims, and there is no evidence before the Tribunal, that any international obligations are engaged.

11. She does not have any children whose interests would be affected by the cancellation of her visa.

12. The Tribunal gives this factor no weight

    Any other relevant matters.

13. The Tribunal disclosed to the applicant prior to the hearing that contained on the Department file was a certificate of non-disclosure issued pursuant to s 375A of the Act, which set out that the disclosure of certain identified folios would be contrary to public interest. The reasons provided for the non-disclosure being contract to public interest was that it would disclose or enable a person to ascertain the existence or identity of, a confidential source of information and disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.

14. The applicant was also provided with a copy of the certificate prior to the hearing and at the hearing submissions were invited as to the validity of the certificate. She did not dispute the validity.

15. The certificate is dated and signed, further the officer issuing the certificate is identified. The Tribunal accepts on its face the reasons for non-disclosure appear to provide a valid reason for non-disclosure of relevant information. The Tribunal is satisfied that the certificate is valid.

16. The Tribunal further disclosed to the applicant the substance of the information contained in the records, particularly that it related substantially to her former de facto partner and his reported activities in Australia. It is the evidence of the applicant that this relationship ended in 2021. She told the Tribunal that she was no longer involved with her former partner and was not sure of his whereabouts.

17. It is considered that the material covered by the certificate has no material bearing on the Tribunal’s consideration of the application under review. It is given no weight in the Tribunal’s considerations.

    Conclusion

18. The Tribunal has considered the applicant’s circumstances and weighed the relevant considerations as discussed above. In balancing these matter it is satisfied that as a whole there are aspects that are significantly favourable to the applicant as discussed above. Particularly considering the reasons the grounds for cancellation arose, the purpose of the visa and the applicant’s stay in Australia, the degree of hardship and her cooperation with the Department.

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

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Penelope Hunter
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.