Piza Medina (Migration)
[2019] AATA 5678
•16 August 2019
Piza Medina (Migration) [2019] AATA 5678 (16 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Andres David Piza Medina
CASE NUMBER: 1903376
HOME AFFAIRS REFERENCE(S): BCC2018/5317162
MEMBER:Elizabeth Tueno
DATE:16 August 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Statement made on 16 August 2019 at 12:43pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – Bachelor of Commerce – not enrolled in registered course – enrolment cancelled – ceased attending classes – illness in family – financial difficulties – worked to support family– lack of evidence – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 6 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The applicant is a 29 year old Colombian national. He was granted a student visa on 5 December 2016, which was valid until 17 July 2020, to complete a Bachelor of Commerce at Torrens University. On 6 February 2019, the delegate cancelled the visa on the basis that the applicant had not complied with condition 8202(2)(a) because he was not enrolled in a registered course. The delegate was not satisfied that the grounds for cancelling the visa were outweighed by the grounds for not cancelling it. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 31 July 2019 to give evidence and present arguments.
The Tribunal has taken into account the applicant’s sworn evidence at the hearing, as well as the documents provided to the Tribunal by the applicant as well as the contents of the department’s file.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The applicant came to Australia with the intention of studying a Bachelor of Commerce. He confirmed in his sworn evidence that he commenced his studies in July 2017 however he stopped attending classes in around January 2018. The PRISM records referred to in the delegate’s decision show that the applicant’s enrolment in the Bachelor of Commerce course was cancelled on 27 February 2018 by Torrens University. He agreed that his enrolment was cancelled on this date. On the 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
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’.
The 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
As noted above, the applicant is a 29 year old Colombian national. He stated in evidence that his reason for travelling to and staying in Australia was for study. In the applicant’s letter dated 22 January 2019 to the Department, he stated, “[s]ince I left my country, my idea was to start and complete a bachelor. Before I arrived in Melbourne I worked as an administrative assistant in my mom’s company this, this [sic] I decided to enrol me in a Bachelor of Business. This Bachelor of Business will give me a unique opportunity to enter a professional market not just in Australia, beside it would open a door in a globalized world”.
Since his enrolment was cancelled, he tried to re-enrol in the same course however his application was not accepted. He has subsequently enrolled in a Diploma of Leadership and Management course at the Universal Institute of Technology Australia, a one year course which commenced in February 2019. In April 2019 he applied for and was granted a 3 month deferment.
The applicant completed approximately 6 months of study before ceasing to attend classes, which led to his enrolment being cancelled. He has since enrolled in a further course of study, albeit at a lower level than a Bachelor degree. The Tribunal accepts that the applicant came to Australia with the intention of studying and it gives some weight against cancelling the visa.
The circumstances in which ground of cancellation arose
The applicant stated that in around September or October 2017, he received bad news. His mother told him that his aunt had been diagnosed with cancer and she asked him to help the family out financially. When asked by the Tribunal about his family, he stated that he comes from a large family including his parents, 3 aunts, 9 uncles, a grandmother and 13 cousins.
He said that between July and September 2017, he had been attending all his classes, however once he received the news about his aunt, he had to work more in his job as a cleaner to help support his family. He said that he became depressed in around November or December 2017. He said that he then began attending a psychologist in Colombia via Skype three times per week and that after approximately 4 months he had recovered from the depression.
After his enrolment was cancelled and until he enrolled in the Diploma course in February 2019, he said he spent his time mostly working. He said his mother came to visit him in Australia in around November 2018 as he had been suffering from depression. He provided extracts from Facebook with photos showing his mother with him in Australia. The applicant stated that his aunt has now recovered from the cancer.
The applicant provided the Tribunal with a psychologist’s report which was in Spanish and had not been translated to English. The Tribunal allowed the applicant a week to provide it with a translated version of this document, and the applicant provided this on 5 August 2019. The report is dated 13 February 2019 and is from Juliana Vesga Rodriguez, a clinical psychologist based in Bogota, Colombia. It appears from the report that Ms Rodriguez began treating the applicant from 24 September 2018 and that there had been a total of 7 therapeutic sessions since then. The report simply mentions that the applicant suffered an emotional breakdown in the month of February 2018 as a result of financial crisis in his home in Colombia and because of this he had difficulty paying for his studies and he had to change accommodation due to his economic situation.
The applicant provided no supporting evidence about his aunt’s illness. While the Tribunal accepts that the applicant was suffering from depression in 2018, there are some difficulties with the applicant’s evidence. The applicant stated in evidence that he was depressed due to his aunt’s illness and that he developed depression in around November 2017. He said after four months of attending sessions with a psychologist three times per week he recovered from the depression.
On the other hand, Ms Rodriguez states that since he first consulted her on 24 September 2018 to the date of her report, being 13 February 2019, the applicant has attended 7 sessions with her. Her report covers a period of nearly 5 months. The applicant’s evidence about the frequency of these sessions does not accord with the sessions noted in the psychologist report.
The Tribunal also takes into account the difference in evidence of the applicant and the contents of the report in relation to the cause of his depression. The applicant attributes his aunt’s cancer diagnosis as the contributing factor as well has having to work more often. However, according to the report, he told Ms Rodriguez it was as a result of a financial crisis both at home for his family as well as for him personally. The report says nothing about an aunt with cancer.
The Tribunal accepts the applicant may have an aunt who was diagnosed with cancer and who has subsequently recovered, however the Tribunal considers the applicant has exaggerated the effect this had on him. The Tribunal places weight on the absence of any reference to an ill aunt in the psychologist’s report. If this was indeed a contributing factor in his development of depression, it is reasonable to expect there to be reference in the report to it as being a cause of his depression.
The Tribunal also takes into account that the applicant presented no evidence of having to financially support his family in Colombia during this time. The Tribunal finds it difficult to accept that in a family as large as the applicant’s, that there was no one else who could provide financial support during this time. The Tribunal finds it difficult to accept that in family as large as the applicant’s, it is the relative who has gone overseas to study upon whom the financial burden falls.
The Tribunal accepts that the applicant developed anxiety and depression however it is difficult to give this any weight in favour against cancelling the visa because of the inconsistencies in the applicant’s oral evidence compared to the contents of Ms Rodriguez’ report about the cause of his depression. In light of the above of the lack of evidence about his aunt’s illness or documents showing the financial support he provided his family, the Tribunal gives some weight about the circumstances in which the cancelation arose in favour of cancelling the visa.
The extent of compliance with visa conditions
Aside from not complying with condition 8202, there is no evidence to suggest that the applicant has not complied with any other condition of his visa. Accordingly some weight is given in favour of not cancelling the visa.
However, the applicant complied with the conditions of his visa for only six months before he stopped attending his classes. His enrolment was cancelled in February 2018. Since then, he has continued to be in breach of condition 8202.
As noted above, the applicant is currently enrolled in a Diploma of Leadership and Management course. He commenced this course in February 2019 and, whilst he has currently deferred the course, he remains enrolled. He said that he enrolled in the Diploma course at Universal Institute of Technology Australia because it was the only institute that would accept him. He said after completing the Diploma, he will be able to enrol in a Bachelor Course at the same institute.
While the applicant is currently enrolled in a course of study, he is still not complying with condition 8202(2)(b), which requires the holder of a visa to maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is the same level as, or at a higher level than, the registered course in relation to which the visa was granted.
The Diploma of Leadership and Management course is a lower level of qualification than the Bachelor of Commerce. Accordingly, even though the applicant has enrolled in a course of study following the cancellation of his enrolment in the Bachelor course, he still remains in in breach of condition 8202. Accordingly, the Tribunal give this some weight in favour of cancelling the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
When asked what hardship might be caused if his visa were to be cancelled, the applicant said that if he cannot continue to study in Australia, it will have a big impact on him. It will be difficult because after the time he has spent here, he has believed that he can achieve anything. He said if he has to return to Colombia, he will not be able to carry out his life plan, although he did not expand with details of his life plan. He said he isn’t someone who gives up easily and that it is been very hard. He said he knows he is capable of achieving his goals and that if he can start again he will not be defeated. The applicant gave no other evidence about how he might suffer hardship, such how he might suffer financially, emotionally, psychologically or otherwise.
The applicant confirmed that he is in Australia by himself and that he has no family here with him. He said he is not married and has no children.
The Tribunal accepts that the applicant will suffer some hardship if he has to return to Colombia without completing the course of study he intended on completing and accordingly give this some weight against cancelling the visa.
Past and present behaviour of the visa holder towards the department
As noted above, aside from not complying with condition 8202 there is no evidence to suggest that the applicant has not complied with any other condition of his visa. Nor is there any evidence to suggest that the applicant has not engaged appropriately with the department. Accordingly the Tribunal gives this some weight against cancelling the visa.
Whether there would be consequential cancellations under s.140
This is not applicable.
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
The applicant gave no evidence about any legal consequences for him, nor did he make any submissions about this.
There are a number of mandatory consequences as a result of the cancellation of the applicant’s visa, including not being permitted (with exceptions) to make an onshore visa application as a result of the cancellation.
If the visa is cancelled, a legal consequence would be that the applicant would not be able to apply for another student visa. Subject to any appeal rights he may exercise, if the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention. The applicant could also be precluded from making any further visa applications for a period of three years as a result of Public Interest Criterion 4013. The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and, in the applicant’s case, do not mean that the visa should not be cancelled.
The Tribunal gives no weight in favour of not cancelling the visa under this consideration.
Australia’s international obligations
There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations. There is no evidence that the accused has any children in Australia (or elsewhere). Accordingly, the Tribunal finds this consideration neutral and does not weigh in support or against cancelling the visa.
Any other relevant matters
The applicant did not give evidence about any other matter that would be relevant to the review of the cancelation of his student visa.
Considering the circumstances as a whole, the Tribunal finds that the factors that weigh in favour of cancelling the visa outweigh the factors against cancelling the visa. Accordingly, the Tribunal finds that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Elizabeth Tueno
MemberATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202 (1) The holder must be enrolled in a full‑time course of study or training if the holder is:
(a) a Defence student; or
(b) a Foreign Affairs student; or
(c) a secondary exchange student.
(2) A holder not covered by subclause (1):
(a) must be enrolled in a full‑time registered course; and
(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a) is enrolled in a course at the Australian Qualifications Framework level 10; and
(b) changes their enrolment to a course at the Australian Qualifications Framework level 9
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Natural Justice
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