NAVA VASQUEZ (Migration)

[2019] AATA 2651

NAVA VASQUEZ (Migration) [2019] AATA 2651 (2 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Miguel Angel NAVA VASQUEZ

CASE NUMBER:  1730642

HOME AFFAIRS REFERENCE(S):           BCC2017/3014401

MEMBER:Vanessa Plain

DATE:2 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 02 May 2019 at 1:29pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – engineering studies – not enrolled in registered course – incorrect departmental advice – compelling reason for breach – circumstances out of applicant’s control – diligent and capable student – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations (Cth) 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 November 2017 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 was not enrolled in a registered course of study since 14 February 2017, based on Provider Registration and International Student Management Systems records (PRISMS).  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 29 April 2019 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 and made submissions, which were helpful and persuasive. 

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.  The applicant was granted a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa on 15 June 2016, for a period of two years.

9. The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on 16 October 2017.  The applicant did not provide any information in response to the NOICC.  The applicant gave evidence that he did not recall receiving the NOICC via his email address, but confirmed that the email address to where the NOICC was sent was accurate.  The NOICC was also sent via registered post to an address in Kensington, Victoria.  A copy of a registered mail envelope on the Tribunal file indicates that the NOICC sent to the applicant, was marked ‘returned to sender.’  The applicant gave evidence that he was not living at the address in Kensington, Victoria at the time the NOICC was sent.  The applicant said he was living at he was living at an address in Shamrock Street, Abbotsford. 

10. The applicant further stated that he does not know why the mail was sent to Kensington, Victoria, as he received his Diploma from Melbourne Polytechnic shortly after February 2017 at the Abbotsford Street premises.  On that basis, the applicant believed he had complied with his obligation to keep his education provider updated as to his current address and he assumed that Melbourne Polytechnic had updated the PRISMS system.      

11. At the hearing, the applicant confirmed in his evidence that he was not enrolled in a registered course during this period, but put forward to the Tribunal the circumstances under which the breach occurred.      

12. The applicant gave evidence that he completed his Advanced Diploma of Engineering Technology unexpectedly early, in December 2016, due to receiving credits from earlier subjects undertaken in a previous course of study of similar nature.  He realises this when he attended upon the education provider in February 2017 with the expectation that he was about to commence the semester.  He was informed that his studies had been completed. 

13. The applicant immediately attended upon the Department’s Offices at 2 Lonsdale Street, Melbourne to obtain advice.  The applicant said that a Department Officer told him that if the applicant had not received a letter to leave the country in 28 days, the applicant doesn’t need to take steps to leave to do anything further.  On that basis, the applicant did not take steps to immediately enrol in a Bachelor of Engineering course, which was his intention on or around that time.  He has been unfairly disadvantaged by the incorrect advice of the officer at the Department with whom he spoke. 

14. The applicant said that he is regretful that he did not seek legal advice sooner, rather, he relied on the accuracy of information provided to him.  The applicant’s failure to realise the information provided to him was erroneous was a matter not reasonably within the applicant’s control.  The applicant was frank and candid in his admissions to the Tribunal which speaks to the credibility of his evidence as a whole.

15. However, based on the candid admissions by the applicant in his 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

16. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

17. 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’

    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 

18. The applicant has successfully completed two advanced Diplomas of Engineering Technology at Melbourne Polytechnic.  The applicant produced copies of his academic grades and certifications. These documents and the applicant’s evidence demonstrate that he is a diligent and capable student.  At the time of the completion of his studies in December 2016, the applicant was considering next enrolling in a Bachelor of Engineering at Swinburne University, a degree which compliments the study he has already successfully undertaken.  He seeks to apply for a visa to undertake this study now, if the outcome of his review application is successful. 

19. Several of the applicant’s family members are qualified engineers.  His mother and sister reside in the United States and his father, an engineer, resides in Venezuela.  His two brothers have also undertaken studies in Australia.  The applicant stated that it would cause him difficulty with his father to return to his home country without a Bachelor degree.  The applicant is not married, nor in a de facto relationship.  He wishes to return to his home country with a Bachelor Degree in Mechanical Engineering, to work as an engineer.  The applicant is regretful that he relied on incorrect advice as set out above. 

20. I therefore find that the applicant has no compelling need to remain in Australia and that he has demonstrated his purpose as being to study, despite unfortunate circumstances not of his own wilful making.  I give these factors some weight towards the visa not being cancelled.      

    The extent of compliance with visa conditions

21. As above, the applicant has not complied with condition 8202(2) and for a considerable period of time.  However, as above, I find that the applicant had a compelling reason for the breach based on his reliance on incorrect advice.  Whilst I find that the applicant did breach the condition, given the circumstances of the breach, I give this no weight towards the visa being cancelled. 

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

22. The applicant described the emotional hardship he would endure at the hands of his father if he returned home in circumstances where his visa had been cancelled and he hadn’t completed the study he set out to complete while in Australia.  He would also suffer some financial hardship as he had received some financial support from his brothers while in Australia. I accept that the cancellation has led to some minor personal detriment, which would be compounded by the continuation of the cancellation and I therefore give this some weight towards the visa not being cancelled. 

    Circumstances in which ground of cancellation arose

23. The circumstances that led to the cancellation of the applicant’s visa have been described above.  The Department then proceeded to consider cancelling the applicant’s visa.  The applicant did not update his details with the Department, which he conceded in his evidence, but he stated that he did update his details with his education provider, evidenced by the fact that the education provider sent mail to his updated residential address after February 2017. 

24. I therefore find that although he did not notify the Department, the applicant did notify his education provider of his change of address promptly.  The applicant recalls receiving the notice of cancellation of his visa via email, at which time he promptly sought the advice of a lawyer.  He does not recall receiving the NOICC via email at the same address.  The consequence of not receiving the NOICC meant that the applicant could not explain the circumstances in which the cancellation arose. 

25. Upon becoming aware that his studies had prematurely concluded, the applicant relied on the advice of an officer of the Department at the offices situated at 2 Lonsdale Street, Melbourne.  The advice is set out above.  The applicant’s primary failing was his failure to update the Department promptly as to his current address, which he thought he had done by notifying his education provider of his current address.  Given the circumstances, I find the applicant has not acted in bad faith, nor has there been an attempt to mislead the Department or avoid studies.  I therefore give this some weight toward the visa not being cancelled. 

    Past and present behaviour of the visa holder towards the Department

26. The applicant has conducted himself in good faith in his dealings with the Department.  This is demonstrated by the fact he immediately took steps to consult with the Department when the applicant realised his studies had prematurely concluded.  I give this significant weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

27. Not applicant

    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

28. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and most importantly to the applicant, would not be able to immediately apply for a student visa to commence studying a Bachelor of Engineering course.  Given the circumstances set out above, this would be manifestly unfair and I give this some weight in favour of the visa not being 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

29. Not applicable.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

30. Not applicable.

    Any other relevant matters

31. The applicant stated that he wished he had obtained legal advice sooner, that that this process had cost him time and money, which is regrets deeply.  I give this some weight in favour of the visa not being cancelled.

32. As above, it is clear that the breach does not reveal any bad faith on the part of the applicant.  It is also clear that the considerations I have arrived at, on examining all the evidence before me, lean towards the visa not being cancelled and I so find.

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

    DECISION

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector Visa.

    Vanessa Plain
    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.