Ore Parraga (Migration)

[2021] AATA 711

Ore Parraga (Migration) [2021] AATA 711 (19 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Roberto Enrique Ore Parraga

CASE NUMBER:  1932989

DIBP REFERENCE:  CLF2011/55789

MEMBER:L. Symons

DATE:19 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to revoke the automatic cancellation of the Student (Class TU) Subclass 572 Vocational Education and Training Sector visa.

Statement made on 19 March 2021 at 11:50am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – certified as not achieving satisfactory course attendance – no response to department within 28 days – automatic cancellation – application for revocation refused – no exceptional circumstances beyond applicant’s control – decision to return to home country and not proceed with hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 137K, 137L(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(3)(b)

Education Services for Overseas Students Act 2000 (Cth), ss 19, 20

Education Services for Overseas Students Regulations 2001 (Cth), r.3.03A

CASES

Chen v MIMIA (2005) 142 FCR 257

Hatcher v Cohn (2004) 139 FCR 425

Wang v MIMIA [2005] FMCA 918

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration not to revoke the automatic cancellation of the applicant’s Student (Class TU) Subclass 572 Vocational Education and Training Sector visa under s.137L of the Migration Act 1958 (the Act).

2. The Department of Home Affairs (the Department) granted the applicant the visa on 13 October 2009. On 4 March 2011, the applicant’s education provider, Apply Study Group Pty Ltd (trading as Apple Study Group), certified the applicant as not achieving satisfactory course attendance for the General English (Beginner to Upper Intermediate) (1 to 50 weeks). The applicant’s visa was automatically cancelled pursuant to s.137J of the Act on 2 April 2011 because he did not present to the Department within 28 days.

3. Pursuant to s.137K of the Act, the applicant applied to the Minister for revocation of the cancellation of his visa on 7 April 2011. The delegate decided not to revoke the visa cancellation on 28 June 2011 and he was incorrectly notified of this decision on 28 June 2011. On 13 November 2019, the Department correctly notified him of the decision not to revoke his visa cancellation under s.137L of the Act. On 20 November 2019, he applied to the Tribunal for a review of the delegate’s decision.

4. On 24 February 2021, the Tribunal wrote to the applicant and invited him to appear before the Tribunal via video on 19 March 2021 at 9.00am to give evidence and present arguments relating to the issues arising in his case. On 3 March 2021, the Tribunal received a Response to Hearing Invitation in which he stated that he would attend the hearing and requested that the Tribunal take oral evidence from two witnesses.  

5. On 19 March 2021, the Tribunal was informed by officers at the Villawood Immigration Detention Facility that the applicant did not wish to proceed with the hearing. The applicant spoke to a Tribunal officer and informed her that he did not need a hearing anymore as he had decided to return to Peru and had made arrangements to do so. He informed the Tribunal officer that he was fine with the Tribunal making a decision “on the papers”.  

6. The applicant appeared before the Tribunal by telephone on 19 March 2021. He confirmed that he had decided to return to Peru and had requested that the Department make arrangements for his return. He stated that he did not wish to proceed with the hearing and requested that the Tribunal make a decision “on the papers”. In these circumstances, the Tribunal has decided to proceed to make a decision on the review.  

7. The issue for the Tribunal's consideration is whether the cancellation should be revoked. In broad terms, the questions that arise for consideration are (a) whether the applicant breached visa condition 8202 and, if so, (b) whether the breach was due to exceptional circumstances beyond the applicant's control. However, even if the applicant satisfies the Tribunal that the breach was due to exceptional circumstances beyond his control, the Tribunal retains a discretion as to whether or not the cancellation should be revoked (Wang v MIMIA [2005] FMCA 918 at [23]).

   RELEVANT LAW

8. Section 137J of the Act applies if a notice is sent to a non-citizen under s.20 of the Education Services for Overseas Students Act 2000 (the ESOS Act). Section 20 requires a registered education provider to send an accepted student a written notice if the student has breached a prescribed condition of a Student visa. Pursuant to r.3.03A of the ESOS Regulations 2001 as amended on 17 December 2009, the prescribed condition for these purposes is condition 8202, which is set out in Schedule 8 to the Migration Regulations 1994 (the Regulations) and relates to course enrolment, progress and attendance. If a non-citizen who holds a Student visa is sent a notice pursuant to s.20 of the ESOS Act (s.20 notice) and he or she fails to respond in the prescribed manner within the prescribed time, then at the end of the 28th day after the day that the s.20 notice specifies, the non-citizen’s visa is automatically cancelled pursuant to s.137J of the Act.

9. However, pursuant to s.137K of the Act, a non-citizen may apply in writing to the Minister for revocation of the cancellation. Section 137L(1) provides that the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister that he or she did not in fact breach the relevant visa condition or conditions; or that the breach was due to exceptional circumstances beyond the applicant’s control; or of any other matter prescribed in the Regulations. No matters have been prescribed. The cancellation cannot be revoked on the ground that the applicant was unaware of the s.20 notice or of the effect of s.137J of the Act. Even if the applicant satisfies the Minister (or Tribunal on review) that the breach was due to exceptional circumstances beyond his or her control, the Minister (or the Tribunal on review) still retains a discretion as to whether or not the cancellation should be revoked: Wang v MIMIA [2005] FMCA 918 at [23].

10. The relevant part of condition 8202 states that:

    (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.

    …

11. If the applicant does not satisfy the Tribunal that he or she did not in fact breach the relevant visa condition, the issue that arises under s.137L(1)(b) of the Act is whether the Tribunal is satisfied that the breach was due to exceptional circumstances beyond the applicant's control. The term 'exceptional circumstances' in this context is not defined in the legislation; however, the expression has been the subject of judicial consideration. In Chen v MIMIA (2005) 142 FCR 257, Lander J stated at [111] that 'any circumstances that are exceptional, in the sense that they are unusual and not of the applicant's own making, but beyond the applicant's control, may provide a reason for the Minister revoking the cancellation'.

12. In a passage cited with approval in Wang v MIMIA [2005] FMCA 918, Kiefel J in Hatcher v Cohn (2004) 139 FCR 425 stated at [49]-[50]:

    'Exceptional' circumstances, in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances. … The words 'exceptional circumstances' may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the words of the relevant statutory provision.

13. As to whether the Tribunal is satisfied that a breach of condition 8202 was due to exceptional circumstances beyond the applicant's control, it is necessary to have regard to Direction No.38, Guidelines for considering cancellation of Student visas for non-compliance with Student visa condition 8202 (or for the review of such cancellation decisions) and for considering revocation of automatic cancellation of Student visas (or for the review of decisions not to revoke such cancellations) made pursuant to s.499 of the Act. This document is intended to give decision makers directions about the performance of powers and functions under s.137L(1)(b) of the Act in relation to breaches of condition 8202 (as amended on and from 1 July 2007).

14. Direction No.38 requires the Tribunal, when considering this issue, to have due regard to policy advice from the Department's Director of Compliance Operational Support Section regarding political upheaval or natural disaster in a particular country; or written advice from the Department of Education, Skills and Employment or an education provider that they have concerns about errors and/or inappropriate actions or omissions in the process leading to the breach and subsequent reporting, including concerns in relation to monitoring of the student, the complaints handling and appeals process and/or the certification and reporting process. In particular, the Tribunal should give due regard, undertaking further inquiries if appropriate, to whether the education provider has failed to accurately monitor the student's course progress or attendance, and whether the education provider has failed to give the student access to a complaints handling and appeals process as required under Standard 8 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code 2007).

15. The above considerations are not intended to be exhaustive. Rather, the Tribunal is required to consider 'all of the facts of the case in total' and come to its own conclusion as to whether the applicant satisfies it that the breach was due to exceptional circumstances beyond his or her control.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

    Has the applicant breached condition 8202(3)(b)?

16. The records of the Department indicate that the applicant was certified by Apple Study Group on 4 March 2011 as not achieving satisfactory attendance for the General English (Beginner to Upper Intermediate) (1 to 50 weeks) course for s.19 of the Education Services for Overseas Students Act 2000 and Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students.

17. In view of the above, the Tribunal finds that the applicant has not complied with condition 8202(3)(b) of his Subclass 572 visa.

    Were there exceptional circumstances beyond the applicant's control for the non- compliance with condition 8202(3)(b)?

18. In his Request for Revocation of Automatic Student Visa Cancellation, the applicant did not specify any reasons to support his Request. He attached a Medical Certificate dated 12 January 2011 from Dr Violeta Cinario. The Medical Certificate states:

    Mr Roberto Ore Parraga is receiving medical treatment and for the period 7/12/2010 to 10/1/2011 inclusive he will be unfit to continue his usual occupation.

19. This Medical Certificate is problematic for a number of reasons. It does not specify what medical condition the applicant had, what medical treatment he received, how long he received that medical treatment and whether the medical treatment was ongoing. It also states that he was “unfit to continue his usual occupation”. It does not state that he was unfit to attend classes. The Medical Certificate was also issued after the period when the applicant was considered unfit to continue his usual occupation.

20. The Tribunal notes that the Medical Certificate states that the applicant was unfit to continue his usual occupation between 7 December 2010 and 10 January 2011. This was a considerable period of time before he was certified by his education provider, Apple Study Group, on 4 March 2011.

21. The applicant has provided evidence to the Tribunal in relation to his partner or former partner to support his request for a reduction in the filing fee. However, he has not provided the Tribunal with any written evidence in relation to the reason why he breached condition 8202(3)(b). As he did not wish to proceed with the hearing, the Tribunal was unable to obtain any oral evidence from him in relation to the reasons that lead to his breach of condition 8202(3)(b).

22. On the evidence before it, the Tribunal is not satisfied that there were exceptional circumstances beyond the applicant's control for the non-compliance with condition 8202(3)(b).

    DECISION

23. The Tribunal affirms the decision not to revoke the automatic cancellation of the Student (Class TU) Subclass 572 Vocational Education and Training Sector visa.

    L. Symons
    Member