Perez Manihuari (Migration)

[2019] AATA 6297

Perez Manihuari (Migration) [2019] AATA 6297 (2 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Gabby Perez Manihuari
Miss Gianna Aylen Montenegro Perez  

CASE NUMBER:  1718769

DIBP REFERENCE(S):  BCC2017/2186223

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         2 September 2019 at 1:47 pm (VIC time)

DATE OF WRITTEN RECORD:                17 September 2019

PLACE OF DECISION:  Melbourne

Decision:Set Aside substitute visa not cancelled for the first named applicant Ms Gabby Perez Manihuari.

Statement made on 17 September 2019 at 2:12pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – applicant did not comply with condition 8202 – applicant ceased to be enrolled in a registered course of study – non-attendance to her study – applicant had given birth – medical certificate provided – compelling reasons for the only breach of her visa condition –decision under review set aside

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 August 2017 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 2 September 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in case number 1718769. The applicant’s name is Gabby Perez Manihuari. This is an application for review of a decision dated 15 August 2017 made by a delegate of the Minister for Home Affairs to cancel the applicant’s subclass 573 Higher Education Sector visa under section 116(1)(b) of the Migration Act. The delegate cancelled the visa on the basis that the applicant was not 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.

4. The applicant appeared via video link before the Tribunal on 2 September 2019 to give evidence and to present arguments. The Tribunal was also assisted by the applicant’s partner from time to time when the applicant struggled to comprehend the English language. The hearing was conducted with the assistance of the applicant’s partner who translated from time to time in the English and Spanish languages. For the following reasons the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. The issue on the present case is whether the applicant is the holder of a student visa as breach condition 8202 of schedule 8 to the Migration Regulations. If the applicant has breached that condition under section 116(1) of the Act the visa may be cancelled.

5. The first question for determination in this proceeding is whether or not the applicant has breached condition 8202 that is by failing to be enrolled in a registered course or in limited cases, a fulltime course of study or training.  In the present case the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course.  An examination of the delegate’s decision record notes that the information before the department indicated the applicant did not maintain enrolment in a registered course of study from 14 January 2017 to 8 August 2017.  Notice of Intention to Consider Cancellation was issued to the applicant on 26 July 2017.

6. In response to the Notice of Intention to Consider Cancellation the applicant set out her reasons in emails dated 2 August 2017 and 8 August 2017 in which she sought to explain the circumstances for her non-enrolment.  In those explanations, in response to the Notice of Intention to Consider Cancellation, the applicant provided medical evidence, being medical certificates from two separate doctors, one dated 31 January 2017 and another medical certificate dated 2 May 2017 that cover the particular period in question.  Those medical certificates to which the Tribunal has had regard clearly set out the medical opinion of two different doctors, to the effect that the applicant was unable to attend to her studies during that time because she had given birth in late December 2016.  That was the reason for the non-attendance to her study or non-enrolment at the relevant time.

7. In the applicant’s oral evidence at hearing the applicant admitted she was not enrolled in the registered course but gave an explanation consistent with the explanation set out in her responses to the Notice of Intent to Consideration Cancellation, that is, namely, that she was not enrolled at the time or not able to attend to her studies at the time because she had just given birth and was in receipt of medical advice that she was not able to study during that time.  The Tribunal has had regard to the matters set out in the medical certificates.  The Tribunal notes that medical certificates are contemporaneous with the period in question and, therefore, places significant weight on those medical certificates as evidence of the circumstances pertaining to the non-enrolment, being circumstances which were reasonably within the applicant’s control.

8. On the evidence before the Tribunal, the Tribunal is satisfied that the applicant was not enrolled in a registered course between 14 January 2017 and 8 August 2017 and, therefore, finds that the applicant has not complied with condition 8202(2).  The Tribunal now turns to whether or not the visa should be cancelled.  There are no matters specified in the Act or Regulations that must be considered in the exercise of its discretion.  The Tribunal has had regard to the circumstances of this case including matters raised by the applicant, matters in the department’s Procedure Advice Manual, PAM3, General Visa Cancellation Powers.

9. The applicant was granted a student temporary class TU Higher Education subclass 573 visa on 14 November 2014 for the purpose of undertaking an approved course of study; namely, in English studies.  There is no evidence before the Tribunal that the applicant has any reason or compelling reason to stay in Australia other than for the purposes of study.  On the contrary, the applicant has a demonstrated history of study whilst on shore.  On the basis of the evidence set out above I find that the applicant has no compelling reason to remain in Australia permanently and that she has demonstrated her primary purpose was being here to study and I give this some weight towards the visa not being cancelled.

10. As to the extent of compliance to visa conditions the applicant has not complied with condition 8202; however, for the reasons I have already set out above there are compelling reasons for the only breach of her visa condition and that is, that at the time of the breach the applicant had recently given birth and has produced two separate contemporaneous medical certificates setting out medical opinion that she was unfit to study at the time.  The applicant further gave evidence that she provided these certificates to her education provider or to her migration agent for the purposes of passing them onto her education provider.  The Tribunal has no reason to doubt the cogency of that evidence.

11. Moreover, the Tribunal has had regard to the fact that the applicant immediately responded to the Notice of Intention to Consider Cancellation and provided the medical evidence to the delegate which is the same evidence relied upon at this hearing today.  On the basis of the evidence whilst I find that the applicant did breach the conditions, given the circumstances of the breach I give this no weight towards the visa being cancelled.  As to any hardship that may be suffered it is apparent that the applicant will suffer some emotional and financial hardship if the visa remains cancelled and she is not permitted to continue and finish her English studies in Australia.

12. The Tribunal accepts that the cancellation has led to some personal detriment to the applicant and that this detriment would be compounded by the continuation of the cancellation and the Tribunal, therefore, gives this some weight towards the visa not being cancelled.  As to the circumstances in which the ground of cancellation arose, for that matters that I have already set out above, the applicant gave birth to a baby girl in late December 2016.  She has produced medical certificates dated 31 January 2017 and 2 May 2017 which clearly set out that she was unfit to study at the time for the period in question.

13. On the basis of that evidence, the Tribunal finds that the circumstances surrounding the cancellation were not reasonably within the control of the applicant.  The Tribunal therefore gives this significant weight towards the visa not being cancelled.  As to any past and present behaviour of the visa holds towards the department, there is no evidence of anything other than good faith in the applicant’s dealings with the department and the Tribunal notes that the applicant responded promptly to the Notice of Intention to Consider Cancellation and provided the same medical evidence she relies on at this hearing today.

14. The Tribunal, therefore, gives this good conduct some weight in favour of the visa not being cancelled. As to whether there would be any consequential cancellation within section 140 of the Act, the Tribunal notes that there is one child that is a dependent visa holder. On the basis of that evidence the Tribunal, therefore, gives this factor some minor weight in favour of the visa not being cancelled. Whether there are other mandatory consequences that would result from the cancellation the Tribunal notes that if the visa were cancelled the applicant would be excluded from making applications for certain types of visas and potentially become liable to be detained and removed from Australia.

15. These are consequences of the legislation.  However, given the circumstances set out above this is manifestly unfair and I give this some weight in favour of the visa not being cancelled.  There is no evidence before the tribunal of any international obligations including non-refoulement obligations in the best interests of the child as a primary consideration that will be breached in these circumstances.  Therefore, no weight is given to this particular criterion.  As I have set out above, it is clear that the breach on the part of the applicant does not reveal any bad faith on her part and was occasioned by matters not reasonably within her control.  It is also clear that the considerations I have arrived at on examining all the evidence before me lead towards the visa not being cancelled and I so find.

    DECISION

16. Considering the circumstances as whole, the Tribunal concludes that the visa should not be cancelled.  The Tribunal sets aside the decision under review and substitutes the decision not to cancel the applicant’s 573 Higher Education Sector visa.  This decision is made at 1.47 pm on 2 September.  This concludes the Tribunal’s hearing and the applicants are now free to leave.

    Vanessa Plain
    Member