Martins Immich (Migration)

[2020] AATA 1730

Martins Immich (Migration) [2020] AATA 1730 (4 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tiago Martins Immich

CASE NUMBER:  1914005

HOME AFFAIRS REFERENCE(S):          BCC2019/1450928

MEMBER:Amanda Upton

DATE:4 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 04 May 2020 at 3:01pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – study difficulty and non-completion of course – claims that agent told him he could not change courses – mental health and mother’s health – no attempt to defer study – steps to enrol in new courses – 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 29 May 2019 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with Condition 8202 of his visa in that he had not maintained enrolment in a registered course at the same level or higher than, the registered course in relation to which the visa was granted. 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 12 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

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

5. 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

6. 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?

7. 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)

   ·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).

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

9. The applicant was granted a Student (subclass 500 Vocational Education & Training Sector) visa on 26 May 2017. He was enrolled in a full time registered course at the time of the grant of the visa. He was to study English Initially and then Diploma and Advanced Diploma in Business.

10. The applicant completed one English course and was enrolled to complete a further Certificate in English studies however this enrolment was cancelled on 22 March 2018. At the date of the hearing he was not enrolled in a registered course

11. At the hearing the applicant acknowledged that he has not been enrolled in a course from that date. The applicant also acknowledged that he understood that not being enrolled in a registered course was a breach of his visa.

12. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

Consideration of the discretion to cancel the visa

1. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. 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’.

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

1. The applicant was initially enrolled in a Certificate III & IV in Spoken and Written English and a Diploma and Advanced Diploma of Business. He completed his Certificate III however he failed to complete the Certificate IV. He told the Tribunal that he did not complete the course as he felt that it was a bad course, that he had asked his agent to change his course but they had told him that they could not do that. He was unable to provide evidence of this as he had gone to the agency and asked in person. He also stated that he could not go to seek help from a different agent as his agent required a release letter.

2. The Tribunal has some misgivings about the information provided by the applicant as to his difficulties he says he encountered with his agent. No correspondence was provided to the Tribunal to confirm the information that he had been given and apparently relied up on by him. 

3. The Tribunal considers however that the holder of a student visa must be responsible for understanding their rights and obligations and absolute deferral to an agent is unacceptable.

4. After the applicant was unable to change course, he became depressed and concerned about his mother in Brazil who was having health problems. He considered returning to Brazil to assist her but before doing so, she appeared to improve and his brother convinced him to remain and complete his studies.

5. After changing his plans to return to Brazil, originally planned for May 2018 (proposed itinerary provided by the applicant), he says he became depressed and was unable to study. The applicant had attended on a psychotherapist before he ceased studying. He attended for 4 sessions between 27 February 2018 and 27 March 2018 (certificate provided to the Tribunal) however did not seek any further professional assistance after this time. He told the Tribunal that he had spoken to someone from RUOK and started speaking to a friend after that.

6. The applicant told the Tribunal that he did not attempt to return to study as he was depressed and his agent would not help him. He said that he knew that he had to go back to study however was depressed and did not know how to do it.

7. The Tribunal considers that the applicant had options that he could have accessed to ensure compliance with his visa condition. He could have sought a deferral of his studies initially as he was seeking professional help from the psychotherapist. He did not do so.

8. The Tribunal does not accept that the applicant could not have changed English courses if he was dissatisfied with the one he was enrolled in and chose not to continue with, particularly as he had already completed the Certificate III.  There are numerous providers of equivalent courses.

9. The Tribunal also notes that the applicant was still able to gain offers of enrolment in December 2019 after a significant period of not being in a registered course and was able to do so apparently with the assistance of an agent.

10. The Tribunal does not consider that the matters that gave rise to the cancellation of the applicant’s visa were beyond his control and his subsequent engagement of an agent and offer letters for registered courses provide further support to this conclusion.

11. Accordingly the Tribunal gives this factor significant weight in favour of cancelling the visa

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

1. The applicant came to Australia for the purpose of studying and states that the reason for him to remain in Australia is to study. Although there is a significant period of time he has spent unenrolled in a registered course, he has provided the Tribunal with offer letters for further study in English and Project Management. Despite the length of time in Australia where he has not been studying there is no other information before the Tribunal to suggest any other reason exists for him to remain and therefore affords this factor some weight in favour of the applicant.

The extent of compliance with visa conditions

1. The applicant has not been enrolled in a full time registered course since March 2018. This is a significant period of time and as such the Tribunal considers it to be a serious lack of compliance.

2. The Tribunal notes that at the time of the hearing, the applicant had been provided with an International Student Offer and Acceptance Agreement to enrol in a further English course. Although no payment for fees had yet been made. He also had an offer letter for a Diploma and Advanced Diploma of Project Management, no fees for which had been paid.

3. Whilst the Tribunal affords this matter some weight in the applicant’s favour, the Tribunal balances this against the significant amount of time that the applicant took to take steps to be enrolled in a registered course and the fact that the applicant told the Tribunal during the hearing that he had commenced to look for a course as he knew that he had his Tribunal hearing coming up. He indicated that it was once he received the hearing invitation, he had sat down with his agent to look at his options.

4. The Tribunal gives this factor significant weight in favour of cancelling the visa.

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

1. The applicant told the Tribunal that emotionally to have his visa cancelled would be horrible because he has been waiting a long time to resolve his visa issues. He indicated that it would be horrible for him to go back home and he will not have a job due to not finishing his course.

2. The applicant had commenced a degree course in his home country however told the Tribunal that he would not be able to complete it as it was too expensive.

3. He told the Tribunal that having difficulties in getting a visa in future would impact him as it was dream to come to Australia and study and he would like to finish that.

4. The Tribunal considers that a cancellation of a visa inevitably may result in opportunities lost and disappointment and potentially some financial loss. However, it is expected that there will be consequences to a cancellation and these are the logical consequences of such. Whilst sympathetic to the disappointment that the applicant may feel upon visa cancellation, the Tribunal does not afford this factor any weight in the applicant’s favour.

Past and present behaviour of the visa holder towards the department

1. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

Whether there would be consequential cancellations under s.140

1. There are no other people associated with the visa and as such the Tribunal affords this factor no consideration.

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

1. If the visa is cancelled, the applicant will become a non-lawful citizen and his ability to apply for other visas would be limited. Whilst unlikely in this instance, he could be detained until he made arrangements to leave the country.

2. The applicant would also be section 48 barred and may not meet the requirement for certain visas for three years.

3. The Tribunal sees these as natural consequences of the cancellation of a visa. The applicant retains his passport and is able to return to Brazil. The applicant raised no reason that he would be unable to return to Brazil and informed the Tribunal that he would do so if his visa was cancelled.

4. The Tribunal gives this factor minimal weight in favour of the applicant.

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.

1. The applicant has provided no reasons for being unable to return to Brazil as such the Tribunal affords this factor no weight.

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

   DECISION

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

   Amanda Upton
   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.