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

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).
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.
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.
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.
On 19 March 2021, the Tribunal was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Ore Parraga (Migration) [2021] AATA 711
Case: [2021] AATA 711
Decision Date: 19 March 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision to affirm the automatic cancellation of Mr Roberto Ore Parraga's Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector). The cancellation was based on the applicant being certified by his education provider as not achieving satisfactory course attendance, a breach of condition 8202(3)(b) of his visa. Following the certification, the Department of Immigration did not receive a response from the applicant within the prescribed 28-day period, leading to the automatic cancellation of his visa. The applicant subsequently applied for a revocation of this cancellation, which was refused by the Department. The Administrative Appeals Tribunal was tasked with reviewing this refusal.

The primary legal issue before the Tribunal was whether the applicant had demonstrated that the breach of condition 8202(3)(b) was due to exceptional circumstances beyond his control. The Tribunal was required to consider all the facts of the case to determine if the applicant satisfied this criterion. A secondary issue arose from the applicant's decision not to proceed with a hearing, which prevented the Tribunal from obtaining oral evidence regarding the reasons for his non-compliance.

The Tribunal found that the applicant had indeed breached condition 8202(3)(b) of his visa, as evidenced by the certification from his education provider. In assessing whether exceptional circumstances beyond his control existed, the Tribunal considered a medical certificate provided by the applicant. However, the Tribunal found this certificate to be problematic as it lacked specificity regarding the medical condition, treatment, duration, and whether the applicant was unfit to attend classes. Furthermore, the period covered by the medical certificate predated the certification of non-compliance by a significant margin. Given the lack of further written evidence and the applicant's decision not to proceed with a hearing, the Tribunal was not satisfied that exceptional circumstances beyond the applicant's control had been established.

Consequently, the Tribunal affirmed the decision not to revoke the automatic cancellation of the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 FINDINGSHas the applicant breached condition 8202(3)(b)? 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. 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)? 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. 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. 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. 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). 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 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. SymonsMember

Decision

Reasons for decision

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 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. SymonsMember

Ratio Decidendi

Legal Principle Established

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