Mites Diaz (Migration)

[2019] AATA 1258

Mites Diaz (Migration) [2019] AATA 1258 (7 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Edgar Alexis Mites Diaz

CASE NUMBER:  1711912

HOME AFFAIRS REFERENCE(S):           BCC2017/1250884

MEMBER:Tigiilagi Eteuati

DATE:7 April 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 07 April 2019 at 6:25pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – poor academic performance – mental health condition – genuine attempt to continue with study – degree of hardship – debt incurred to Ecuadorian government if visa remain cancelled – decision under review set aside

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 25 May 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education 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 breached the condition of his visa to remain enrolled in a registered course. 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 14 June 2018 to give evidence and present arguments.

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

5. 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

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 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).

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

9. The delegate found that the applicant had not been enrolled in a registered course between October 2016 and September 2017. This was admitted by the applicant and the Tribunal finds that 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

10. 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.’

11. The applicant gave evidence that he had performed outstandingly in his high school studies in Ecuador and that, as a result, he had been granted a full scholarship from the Ecuadorian government to study in Australia.

12. When the applicant arrived in Australia in February 2014 he was enrolled in a university preparation course to be followed by a Bachelor of Engineering degree at the University of Queensland. The applicant successfully completed the university preparation course at the end of 2014. However, he did not achieve the results necessary for direct entry into the Bachelor of Engineering degree course. The applicant explained that when he had arrived in Australia he found it difficult to adjust to living in Australia, being taught in English and the new approach to learning in Australia. Because the applicant could not begin the Bachelor of Engineering degree, he enrolled in a Bachelor of Information Technology course.

13. In the first semester 2015, the applicant struggled with his studies and began to fail units. The scholarship that he was receiving from the Ecuadorian government would involve the Ecuadorian government sending him money for both his tuition fees and living expenses twice a year, in February and in September.

14. The applicant was diagnosed with depression in 2015 and he gave evidence this greatly affected his ability to successfully undertake his course. The applicant provided documentary evidence to support this claim.

15. In the second semester of 2015 the applicant’s scholarship payment from the Ecuadorian government was delayed for some time as the applicant had failed units in the first semester. This meant that the applicant did not have access to all the online resources for his courses and this added a further difficulty to him passing his courses.

16. The applicant continued to perform poorly in the first semester of 2016 and the combination of his depression and the delays in being sent funds from Ecuador resulted in him failing units in that semester.

17. In the second semester 2016, the Ecuadorian government ceased scholarship payments until the applicant could produce evidence that he was enrolled in a Bachelor of Engineering degree. The applicant’s enrolment was cancelled in October 2016 for non-payment of fees. It appears that the applicant re-enrolled in the Bachelor of Information Technology course in September 2017 but that this enrolment was in again cancelled in October 2017 for non-payment of fees.

18. The applicant provided oral evidence at the hearing and documentary evidence, including from the University, that although the applicant’s enrolment was cancelled he continued to attend lectures and tried to submit assignments towards his course.

19. The applicant’s plan going forward was to enrol in a Bachelor of Arts course to increase his grade point average in order for him to be re-admitted into a Bachelor of Engineering course. Once he is admitted to a Bachelor of Engineering course, his Ecuadorian government scholarship will resume.

20. The applicant provided the Tribunal with evidence that he had saved some $7000 which he would use to pay for a semester at University in order to increase his grade point average and be admitted into a Bachelor of Engineering course. He said that he had been assured by the Ecuadorian government that if he were readmitted to a Bachelor of Engineering course, his scholarship would resume.

21. The Tribunal has some concerns about the applicant’s ability to successfully undertake an education course in Australia. That is because in 2014 and 2015, before the issue with payment of scholarship money arose, the applicant was performing poorly at university. Further, the applicant has been suffering from mental illness and the Tribunal is not completely convinced that this will not continue to negatively affect his ability to successfully complete the course.

22. Further, the Tribunal has some concerns that the applicant’s scholarship will not resume, and if it does not he will not have the financial means to undertake a course.

23. However, it is clear in this case that the applicant has tried very hard to continue with his education even after his enrolment was cancelled. In addition, the Tribunal accepts the applicant’s evidence that his mental condition has improved and that he is confident that he will be able to study successfully in future.

24. Further, and significantly, the Tribunal accepts the applicant’s evidence that if his visa remains cancelled, he will have to return to Ecuador and repay all of the money which was expended on him for both his tuition fees and living expenses between 2014 and 2016. The Tribunal accepts that the applicant is not from an affluent family and that it would take him and his family years to pay off such a large debt.

25. The Tribunal has also considered that, if the applicant’s visa remains cancelled, he will be prevented from returning to Australia for three years. If the cancellation decision is set aside and the applicant is able to gain admission into a Bachelor of Engineering course, he will be able to apply for another visa to successfully undertake that course.

26. The Tribunal notes that if the applicant continues to perform poorly, is not admitted to a Bachelor of Engineering course, and is unable to pay his fees, it is unlikely that the applicant will be granted a further visa to study in Australia.

27. While the Tribunal has some concerns that the applicant will not be able to successfully undertake an education course in Australia, the Tribunal considers that given that the applicant has made every effort to continue to study, and given the great hardship that would be caused to the applicant and his family in having to pay back the large amount of money which the Ecuadorian government has spent on his scholarship, the Tribunal has decided to exercise its discretion to set aside the cancellation decision to give the applicant the opportunity to be able to successfully complete his course in Australia.

    DECISION

28. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Tigiilagi Eteuati
    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.