Rios (Migration)

[2019] AATA 4167

Rios (Migration) [2019] AATA 4167 (4 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Damian Martin Rios

CASE NUMBER:  1719350

HOME AFFAIRS REFERENCE(S):     BCC2017/1668577

MEMBERS:Dr Jason Harkess

DATE:4 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa and in its place substitutes a decision not to cancel the visa.

Statement made on 04 September 2019 at 11:14am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – non-enrolment period of just over 2 months – transition phase from one course provider to another – genuine student – purpose of visa fulfilled – decision under review set aside

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

[ 1 ]The Applicant is a citizen of Argentina. He seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the delegate’) on 23 August 2017 cancelling his Subclass 573 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

[ 2 ]The Applicant’s student visa was granted on 16 March 2015 with an original expiry date of 3 May 2019, providing for more than 4 years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.

[ 3 ]The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.

[ 4 ]The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

HEARING OF APPLICATION

[ 5 ]The Applicant appeared before the Tribunal via video-link to give evidence and present arguments.

[ 6 ]For the following reasons, the Tribunal has decided to set aside the decision to cancel the visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

[ 7 ]The Applicant’s visa was subject to a number of conditions as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’), as they then were, when the visa was granted. In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?

[ 8 ]Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 20 May 2017 to 3 August 2017 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to just over 2 months during which the Applicant was alleged to be in continuous breach of the visa.

[ 9 ]The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[1] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database allows registered course providers to report changes in relation to a student’s enrolment status and to notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s Confirmation of Enrolment (‘CoE’) in a course for which they had previously been enrolled and the reasons for doing so.

[1] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

[ 10 ]The PRISMS report obtained by the delegate indicated that the Applicant had not been enrolled in a registered course of study since 27 September 2016. The Department of Home Affairs originally wrote to the Applicant on 5 July 2017, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice originally set out particulars of the alleged breach by the Applicant of Condition 8202, suggesting the Applicant had not been enrolled in a registered course of study for more than 9 months. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

[ 11 ]The Applicant replied to the NOICC on 13 July 2017 (‘the Applicant’s response to the NOICC’). As a result of that NOICC response, the Department reconsidered the basis upon which the Applicant’s visa may be cancelled. On 3 August 2017, the Department wrote to the Applicant revising its original notice of intention to consider cancelling his visa (‘the amended NOICC’). The amended NOICC stated that the Applicant was to ‘disregard’ the original NOICC which had alleged more than 9 months of continuous breach of Condition 8202. The critical change contained in the amended NOICC was that the Department now alleged that the Applicant had not been enrolled in a registered course of study for the period from 20 May 2017 to 3 August 2017, amounting to just over 2 months during which the Applicant was now alleged to have been in breach of Condition 8202.

[ 12 ]The Applicant replied to the amended NOICC on 9 August 2017 (‘the Applicant’s response to the amended NOICC’). He did not dispute the allegation that he not been enrolled in a registered course of study for the period 20 May 2017 to 3 August 2017. At the hearing before the Tribunal on 4 September 2019, the Applicant admitted that he had not been enrolled for this period.

[ 13 ]Based on the available information and material, the Tribunal is satisfied that the delegate was correct in reaching the conclusion that the Applicant was in breach of condition 8202(2)(a) of the visa for just over 2 months.

Consideration of the Discretion to Cancel the Visa

[ 14 ]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. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. The matters that ought to be considered are specifically listed in PAM3 as follows:

·the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

·the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

·the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

·the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

·the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

·whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

·whether there are mandatory legal consequences arising from a decision to cancel the visa;

·whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances Giving Rise to Breach of Condition 8202

[ 15 ]In both the Applicant’s response to the NOICC, and his response to the amended NOICC, he sought to explain that, during the 2-month period in which he was in breach of Condition 8202, he was effectively in a transition phase from one course provider to another. He had just completed an English course on 19 May 2017 and was waiting for the results of the final exam for that course. Those results would determine whether he was eligible to enter university. It appears he only found out that about his test results on 31 July 2017. He did not meet the eligibility criteria for university entry based on those results. Upon advice from a migration agent, he immediately searched for another English course to undertake. He found one on 2 August 2017, the day before the Department sent the amended NOICC, and he enrolled in that English course.

[ 16 ]The Applicant has maintained his claim that, apart from the 2-month period of non-enrolment, he has consistently maintained compliance with his visa conditions. The Applicant provided substantial evidence in support of his claims. The Tribunal accepts this evidence. He continues to be a genuine student.

Purpose of Applicant’s Stay in Australia

[ 17 ]The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, is to study on a full-time basis. The Applicant has demonstrated, with significant documents in support of his claim, that he has utilised his time in Australia to study full-time. The 2-month period during which he was not enrolled in a registered course of study represents a very small portion of the visa period. Accordingly, that Tribunal does not consider the breach of Condition 8202 in this case to have significantly undermined the purpose for which the Applicant’s visa was granted.

Extent of Applicant’s Compliance with Visa Conditions

[ 18 ]The Applicant’s breach of his visa lasted for only a little over 2 months. The Applicant has otherwise been compliant with his visa conditions.

Hardship

[ 19 ]The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. The Tribunal accepts that it would be difficult for him were he not allowed to complete successfully an Australian qualification.

Applicant’s Behaviour towards Department

[ 20 ]The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. He was responsive to the Department’s NOICC and amended NOICC. He has at all material times been co-operative in assisting the Department towards the resolution of this matter.

Other Visa Holders

[ 21 ]There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

[ 22 ]The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. The Tribunal considers that these consequences are unduly punitive in the circumstances of this case.

International Obligations

[ 23 ]The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Conclusion

[ 24 ]In all the circumstances, the Tribunal is of view that the preferable outcome in this case is not to cancel the Applicant’s visa. In the Tribunal’s view, that outcome should have been realised as soon as the Department became aware that the Applicant was only in breach of Condition 8202 for a period lasting just over 2 months and in circumstances where the Applicant explained the breach adequately.

DECISION

[ 25 ]The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa and in its place substitutes a decision not to cancel the visa.

Dr Jason Harkess
Member