Mego Inga (Migration)

[2022] AATA 2015

Mego Inga (Migration) [2022] AATA 2015 (4 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yoser Mego Inga

REPRESENTATIVE:  Mr Mehmet Celepci (MARN: 0636137)

CASE NUMBER:  2204396

HOME AFFAIRS REFERENCE(S):          BCC2020/2228286

MEMBER:Frank Russo

DATE:4 May 2022

PLACE OF DECISION:  Sydney

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

Statement made on 4 May 2022 at 10:00am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – not enrolled in a registered course – enrolment cancelled due to non-payment of fees – consideration of discretion – lack of academic progress – study gap – significant period of breach – 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 24 March 2022 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 not enrolled in a course of study from 25 February 2020 until 14 February 2022, and therefore had breached condition 8202 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.

3. The applicant is a 26-year-old Peruvian national. He arrived in Australia holding a Student visa, and has subsequently been granted a further two Student visas. The applicant was enrolled in English language courses from his arrival in Australia in August 2016 until July 2019, when he enrolled in a package course for an Advanced Diploma of Project Management. He claims that he returned to Australia in February 2020, after a trip to Peru. He claims that he ceased studying in February 2022 because his brother-in-law, who was his financial sponsor, lost his job as a result of the COVID-19 pandemic, and he did not continue with his studies because of a range of factors associated with the COVID-19 pandemic. The applicant enrolled in a Diploma of Leadership and Management on 14 February 2022 and continued to be enrolled in this course at the time of the hearing.

4. The applicant appeared before the Tribunal by telephone on 29 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

5. The applicant was represented in relation to the review. His representative also attended the hearing by telephone and gave oral submissions.

6. 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

7. 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.

8. In addition to the information provided with his application for review, the applicant provided the Tribunal with a copy of the delegate’s decision and the notice of the decision from the Department. On 26 April 2022 he provided the Tribunal with a response to the hearing invitation. On 29 April 2022 (the morning of the hearing), he provided copies of a confirmation of enrolment (CoE) for the Diploma of Leadership and management at Sydney International Business College (SIBC) from 14 February 2022 to 12 February 2023, as well as a letter from SIBC, dated 26 April 2022, confirming enrolment in the Diploma of Leadership and Management.

9. The Tribunal also has regard to the documents on the Department file, which include a response from the applicant dated 12 January 2022, to the Department’s notice of intention to consider cancellation (NOICC) of the visa. This response attached a Form 956 (appointment of his representative) and a two-page statement from the applicant.

   Did the applicant comply with Condition 8202?

10. 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).

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

12. At the hearing the applicant confirmed that he agreed there are grounds for cancellation of the decision, on the basis that when he returned to Australia in February 2020, he ceased enrolment in the course he was enrolled in at that time. The applicant claimed that this was because the COVID-19 pandemic arrived in Australia at the same time he returned in February 2020.

13. The Tribunal also notes that in his response to the Department’s NOICC, the applicant claims that he went to Peru on 5 December 2019 for a holiday, and returned to Australia on 20 February 2020, and that he did not have money to pay for his tuition fees because his brother-in-law had lost his job as a result of the COVID-19 pandemic, and was unable to support him financially. The applicant confirmed that this was correct at the hearing.

14. Although the applicant’s evidence of his enrolment history is overall consistent with the information contained in his enrolment record from the Provider Registration International Student Management System (PRISMS), the Tribunal noted it had a copy of his PRISMS enrolment extract on the file and put the information to him using the procedure set out in s.359AA of the Act.

15. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained that according to this record the applicant has had the following enrolments:

    a.He was enrolled in a range of short English courses from September 2016 to November 2020, the most of which was successfully completed was a General English course on 12 July 2019;

    b.He was enrolled in IELTS Preparation courses beyond July 2019, but these were cancelled on 9 April 2019 because of non-commencement of studies and on 14 July 2017 because of changes to administrative details, with both enrolments cancelled prior to commencement of the courses;

    c.The applicant also had an enrolment in General English commencing in August 2019, but this was cancelled in September 2019 due to the applicant notifying that he was ceasing his studies, and a course from January 2020 to March 2020, which was cancelled in September 2019, prior to the course commencing;

    d.He had three enrolments in General English and English for Academic Purposes from January 2020 to November 2020, but all three are recorded as ‘Inactive’;

    e.He was enrolled in a package course which included the Certificate IV in Project Management Practice, a Diploma of Project Management and an Advanced Diploma of Project Management, which commenced on 30 September 2019, with all three CoEs cancelled on 25 February 2020 due to non-payment of fees; and

    f.He enrolled in the Diploma of Leadership and Management on 14 February 2022 until 12 February 2023, which he is currently studying.

16. The Tribunal explained to the applicant the consequences of relying upon the information and its relevance both to determining whether he was enrolled in a course of study and intentions in relation to his studies. The Tribunal confirmed that the applicant understood the relevance and the consequences of the information being relied upon. The Tribunal asked the applicant whether he had any comments in relation to the information put to him from his PRISMS enrolment record and advised that he may be granted time to comment or respond to the information if needed.

17. The applicant indicated that he wished to respond to the information provided to him from his PRISMS enrolment record at the hearing. He indicated that the information was correct and again confirmed that he ceased studying on 25 February 2020 when his CoEs for the Project Management courses in which he had been enrolled were cancelled due to non-payment of fees.

18. From his evidence, the applicant concedes that he was not enrolled in a registered course of study from 25 February 2020 until 14 February 2022, and had failed to maintain his enrolment in accordance with condition 8202. This is also confirmed by the information contained in his PRISMS enrolment record, which the applicant confirmed is correct.

19. 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

20. 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

21. The applicant told the Tribunal that he had two reasons for wishing to remain in Australia. Firstly, he would like to finish his English course, and secondly, he claimed it relates to his daughter’s studies in Peru. The Tribunal put to the applicant that he had stopped studying English around August 2019, when he commenced studying Project Management in September 2019. The applicant then stated that he meant that he wishes to finish his Project Management course, however the Tribunal notes the applicant ceased his studies in Project Management in February 2020 and is currently enrolled in the Diploma of Leadership and Management. I note that other times the applicant mentioned he was enrolled in a course in Management.

22. When questioned about the relevance of his stay in Australia to his daughter’s study in Peru, the applicant responded that if he is studying and working in Australia, he is able to pay for and provide his daughter with a better education. The Tribunal put to the applicant that Student visa holders are meant to have sufficient funds to support their stay in Australia, and the purpose of the Student visa is not to earn funds to send overseas to their families. The applicant responded that the only thing he is asking is to be given the opportunity to finish the course he is currently enrolled in.

23. The Tribunal put to the applicant the concern that he may already have been given sufficient time to complete his proposed studies as he has been granted three Student visas and has been in Australia since August 2016, over 5 years and 7 months, and in this time the only courses he has successfully completed have been ELICOS courses. The applicant indicated that he had no comments in relation to this concern.

24. The Tribunal also put to the applicant that while he is currently enrolled in the Diploma of Leadership and Management, his enrolment in this course did not commence until 14 February 2022, which was after the NOICC sent to him by the Department in December 2021 and followed a gap of over 23 months in which he was not enrolled to study. The Tribunal put to the applicant concern that his enrolment history may suggest that he had obtained his current enrolment primarily for the purpose of maintaining ongoing residence, and his purpose for remaining in Australia may o longer be in line with the purpose of the Student visa. The applicant responded that he does not want to leave Australia without first finishing his Management course, as this qualification will serve him a lot and be very useful in his home country.

25. There is no evidence that the applicant’s original purpose for travelling to and staying in Australia was for reasons other that the purpose of study. However, given the applicant’s enrolment history, the Tribunal has concerns that the applicant wishes to remain in Australia for reasons other than a genuine interest in his course of study and in obtaining qualifications. The Tribunal considers the gap in the applicant’s studies of over 23 months to be significant, and for the reasons set out below, does not accept the applicant has provided sufficient explanation for a gap of this length. The Tribunal also finds the applicant’s current enrolment in the Diploma of Leadership and Management was obtained after the NOICC was sent to him and was obtained primarily to achieve a successful outcome in relation to the consideration of whether to cancel his Student visa, rather than for the reasons stated. Given these issues and his lack of academic progress in any courses other than ELICOS courses in a period of over 5 years and 7 months, I am satisfied that the applicant’s purpose in remaining in Australia is no longer in line with the purpose of the Student visa. This finding is further reinforced by the applicant’s claim that he wishes to remain in Australia to work and study in order to pay for a better education for his daughter in Peru. Accordingly, I give this condition weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

26. The applicant conceded at the hearing that he did not comply with the enrolment condition (condition 8202) of his Student visa by not maintaining enrolment in a registered course of study from 25 February 2020 to 13 February 2022. This is a period of over 23 months, which the Tribunal considers to be a significant period of breach. The applicant claims in his statement, as well as in his evidence, that he otherwise complied with the conditions of his visas up until February 2020.

27. The Tribunal questioned the applicant about his knowledge of the other conditions to his Student visa, to which he gave vague responses. When questioned about the work conditions of his Student visa, he stated that he previously could work up to 20 hours per week, and now he can work up to 40 hours per week. The Tribunal questioned whether he has always complied with these work conditions. The applicant responded that there were times when he was out of work for a ‘long period’ of time, such as one to two months. He then stated that there have been times when he did not comply with the work conditions and breached these conditions by working more hours than allowed. He stated that he could not remember exactly when these breaches occurred.

28. The Tribunal notes that the Department file contains a copy of an anonymous dob-in letter provided to the Department in 2020. The Tribunal noted at the hearing that the allegations in the letter relate primarily to other visa holders, rather than the applicant, and in relation to the applicant, the letter makes claims that the applicant may not have held a valid visa at the time, and that he may not have been paying taxes. The Tribunal noted that the applicant did in fact hold a Student visa at the time of the letter, and also considered the allegation about not paying taxes to be vague and lacking in detail, and therefore the Tribunal would not give this letter any weight or have regard to it. I confirm that I consider the letter to be of no probative value, and therefore do not take it into account in making any findings.

29. The applicant was in breach of the enrolment condition for a period of over 23 months, which I consider significant. This alone is sufficient for me to give this consideration weight in favour of cancelling the visa. I note that in addition, the applicant has on his own admission also breached the work condition of his visa by working beyond the allowed hours. Overall, I give this consideration weight in favour of cancelling the visa.

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

30. The applicant told the Tribunal that the main hardship he will experience of the Student visa is cancelled is he won’t be able to access certain jobs in Peru which will benefit his family. When questioned at the hearing whether there would be any other hardship, he indicated that this was the main one.

31. I acknowledge that the cancellation of the visa may result in some hardship for the applicant. This may include that he will be unable to complete the Diploma of Leadership and Management which he commenced in February 2022 and therefore will not have the benefit of this qualification in applying for jobs on return to Peru. I acknowledge also that there may be other financial, psychological and emotional hardship on the applicant and his family as a result of cancellation of the visa, however I give this only little weight against cancelling the visa.

    Circumstances in which ground of cancellation arose

32. The applicant claims that he went to Peru over January and February 2020 for a holiday and that the breach of the enrolment condition occurred after he returned from holidays on 20 February 2020. He claims that his brother-in-law in Peru, who is his financial sponsor, lost his job because of the COVID-19 pandemic and the applicant was not working at the time, so was unable to support his studies. He told the Tribunal that he postponed paying his fees, and when he went to pay his fees, the college was shut down. He claims in his written response to the NOICC that from March 2020 he telephoned his school many times to tell them he was ready to pay his tuition fees and restart his education, but the school did not answer his calls.

33. The applicant also claims in his written statement that all of the members of his family became infected with Coronavirus, and that he lost two aunts and a grandfather in the pandemic. He claims that this caused immense stress and frustration, that he was depressed and this was beyond his control. He claims that he has now recovered from his ‘psychological problems’ and wishes to continue his education. At the hearing he stated that he could not concentrate on his studies, which is why he decided not to study.

34. At the hearing the Tribunal questioned the applicant as to when his family members passed away. He stated that an uncle passed away in July 2020, followed by an aunt in September 2020, and his grandfather in March 2021. When asked if he has any medical records in relation to the psychological problems he claims he experienced, he responded that he was so scared of being on his own in Australia and contracting the virus, so he sought all medical attention through video calls to Peru. He added that he also sought this help in Peru because of the language barriers in seeking this treatment in Australia. The Tribunal questioned the applicant about his claim that he was on his own in Australia and asked whether he has a brother and sister in Australia. The applicant confirmed that he does have a brother and sister in Australia, and that he lives with them, but they all feared going out to get treatment in case they contracted the virus.

35. While I acknowledge the applicant’s circumstances and the difficulties presented by the COVID-19 pandemic, I find that the applicant has not provided a convincing or compelling explanation for the breach, noting that he remained unenrolled for a period of over 23 months. While the applicant claims he could not pay his course fees in February 2020, there is no evidence that he sought deferment of his studies or raised this issue with his education provider at the time. The applicant claims that he then attempted to telephone his education provider a number of times in March 2020, but the college was closed at the time as a result of a lockdown. While I am prepared to accept that the applicant’s college may have been closed during part of March 2020, or it may have been difficult to contact the college by telephone at that time, the applicant has not provided any evidence of attempts to contact his college after March 2020.

1. Although the applicant has not provided supporting evidence of the deaths of his three relatives in Peru, or that other family members contracted COVID-19, I accept these claims. I also accept that the COVID-19 pandemic created a period of significant uncertainty and fear for individuals. I however consider the applicant’s claims about the psychological issues he experienced to be exaggerated and note in particular his evidence that he was scared because he was alone in Australia, but later confirmed, following further questioning, that he was living with his brother and sister. While I accept that the ill health and deaths of family members in Peru would have caused symptoms of stress, depression or anxiety, the applicant has provided no medical evidence in support of diagnosis of any mental health conditions or other illnesses. I do not find his claims to have sought online help from Peru to be convincing, given the vagueness of this claim and his claim that he was scared because he was on his own, which I find was not the case.

2. Overall, I do not consider that the applicant has provided a sufficient explanation for the breach of the enrolment condition for a period of over 23 months. There is nothing to indicate that he contacted his college from April to June 2020, prior to the death of his first relative from COVID-19 (in July 2020), nor any evidence that he attempted to contact any other education providers to obtain a CoE or to undertale his course online. The information provided by the applicant is also insufficient to explain why he remained unenrolled until February 2022, following the issue of the NOICC. While I acknowledge the applicant’s circumstances, there is little evidence of extenuating circumstances that were beyond the applicant’s control, particularly given the length of the breach over a considerable period of time. The Tribunal gives this factor a little weight in favour of cancelling the visa.

   The visa holder’s past and present behaviour towards the Department

3. There is no information before the Tribunal to suggest the applicant has been uncooperative with the Department. He responded to the NOICC issued by the Department. The Tribunal gives this some weight against cancelling the visa.

   Whether there would be consequential cancellations under s.140

4. The applicant confirmed at the hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa.

   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

5. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189 of the Act, however he could apply for a Bridging visa in order to settle his affairs in Australia. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal asked the applicant whether there were any particular considerations it should have regard to, given these mandatory legal consequences, to which he indicated he had no comments. The Tribunal has had regard to the applicant’s reasons for wishing to remain in Australia. On the evidence fore it, the Tribunal weighs this factor neither for nor against cancelling the visa.

   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 

6. Not applicable.

   Any other relevant matters

7. The applicant stated that there were no other matters relevant to the Tribunal’s consideration. The Tribunal finds that there are no other relevant matters and weighs this consideration neither in favour nor against cancelling the visa.

   conclusion

8. I consider the applicant’s breach where he remained unenrolled for a period of over 23 months to be significant. I have considered the various considerations that I must look at as part of the exercise of the discretion, as set out above, and find that they provide insufficient weight against cancelling the visa.

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

   DECISION

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

    Frank Russo
    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.