ROLON SOLANO (Migration)

[2018] AATA 330

ROLON SOLANO (Migration) [2018] AATA 330 (8 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr NICOLAS ROLON SOLANO

CASE NUMBER:  1707993

DIBP REFERENCE(S):  BCC2017/716737

MEMBER:Tigiilagi Eteuati

DATE:8 February 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 08 February 2018 at 7:45pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa – Ceased to be enrolled in a registered course – Failed to pay fees – Study disrupted due to personal issues – Able to study architecture in home country

LEGISLATION
Migration Act 1958, ss 116, 359AA

Migration Regulations 1994 Schedule 8 Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 April 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had bre3ached the condition of his visa to remain 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.

3. The applicant appeared before the Tribunal on 22 January 2018 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

6. 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?

7. 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).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

9. The delegate found that the applicant ceased to be enrolled in a registered course on 24 May 2016. This was admitted by the applicant and accords with records held by the Department. 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).

10. The Tribunal notes that the applicant claimed that he enrolled in a certificate II course and provided evidence of a conditional letter of offer dated 8 September 2016 for a Certificate II in creative industries. For the purposes of this decision the Tribunal is willing to accept that the applicant enrolled in this course. However, the applicant had breached condition 8202 when he ceased to be enrolled in any course on 24 May 2016. Further, his enrolment in the Certificate II course does not weigh significantly in his favour in the exercise of the discretion as to whether to affirm the decision because he did not complete the course and indeed, at one point during the hearing, when asked when he last studied, said that he last studied in April 2016 when he ceased studying the Architecture course.

    Consideration of the discretion to cancel the visa

11. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). The Tribunal has also carefully considered all of the material and submissions provided by the applicant including material and submissions received after the hearing of the matter.

13. When the applicant first arrived in Australia on a subclass 570 visa in January 2014 he was enrolled to study an English language course. PRISMS records record that his enrolment in the course was cancelled because he failed to meet the required attendance for the course. This information was put to the applicant in accordance with section 359AA for his comment or response. The applicant explained that he failed to meet the attendance requirements because he lived far away from the school and therefore found it difficult to always attend class. He re-enrolled in the course which he then completed in December 2014.

14. The applicant was granted a subclass 573 visa on 4 February 2015. When this visa was granted he was enrolled in a Bachelor of Architectural Design. He said that he began this course in March 2015 and passed all four subjects in his first semester. He said that he suffered from [health] problems in his second semester and requested that the University allow him to withdraw from one of the four courses he was enrolled in. The applicant claimed that he had successfully completed the other three courses. He said that he returned to Colombia in December 2015 and stayed there until mid-February 2016. He said that he did so in order to seek medical treatment for his [medical condition]. The applicant provided evidence that he sought medical attention for these problems while in Colombia.

15. The applicant said that when he returned to Australia he decided that he wanted to pay for his tuition without his parent’s assistance. He said that he made this decision because he did not want to pressure his parents to help pay for his fees and because his parents were going through some personal problems and did not want to bother them with having to pay for his fees. He said that the problems were not financial ones and that his parents always had the ability to pay for his fees. He said that he could not afford to pay for his fees and asked the University if he could pay by instalments. The University refused and on 5 April 2016 he received a letter from the University indicating that his enrolment would be cancelled if he did not pay his fees. He says that despite trying to raise the money for his fees he was unable to do so and his enrolment at the University was cancelled on 24 May 2016.

16. The applicant said that after his enrolment was cancelled he spoke with his parents and they agreed to pay for his fees and that he should re-enrol in the second semester of 2016. The applicant said that he prepared an application and gathered all required documents and applied to the University to enrol in the second semester 2016. He said that an admissions officer from the University named [Ms A] indicated that he could not enrol in the second semester 2016 because there were insufficient units for him to enrol in for the second semester of 2016. He said that [Ms A] told him that he should enrol in another course with a different provider during the second semester 2016 so that he would meet his visa conditions. He said that in August 2016 he applied for admission in the first semester of 2017 with the University and sent all the required paperwork to [Ms A]. He said that he enrolled in a Certificate II in Creative Industries in September 2016 so as not to breach his visa conditions. As mentioned previously he did not complete the course and indeed, at one point during the hearing when asked when he last studied, said that he last studied in April 2016 when he ceased studying the Architecture course.

17. The applicant said that in October 2016 his best friend was accused of, and charged with, sexual assault. He said that this caused much stress for both him and his friend. He said that he spent much time and money supporting his friend. He said that in December 2016 he contacted [Ms B], another admissions officer at the University, to enquire about his enrolment and was told that [Ms A] had not been at the University when he had submitted his previous application and that he should resubmit his application. He said that he did so in December 2016. He said that shortly after this his friend committed suicide.

18. The applicant said that this was very upsetting and stressful for him and that he had to help his friend’s family identify the body and help raise funds relating to his friends funeral. He said that he spoke to [Ms B] again towards the end of January 2017. She said that she had been concerned that he did not wish to proceed with the application as she had tried to contact him and he had not responded. He explained that he had not responded because he was grieving for his friend and was unable to respond. He said that he provided [Ms B] evidence of his friend’s passing and provided other documents that she had requested. He never received another COE from the University and does not know why this was so.

19. The applicant said that he would suffer hardship if his visa remained cancelled because it was the wish of he and his family that he finish the architecture degree in Australia and return to work for his parent’s construction company in Colombia. He said that if his visa remained cancelled he would be prevented from applying for another visa for three years. He said that while he could study architecture in Colombia, that the architecture degree in Colombia takes six years rather than three. He said that if he went to another country to study time would be taken applying for enrolment and a visa. He said that he would lose a lot of time if his visa remained cancelled.

20. The Tribunal indicated that it was concerned that given that the applicant had failed to meet his attendance requirements for his first English language course, that he had effectively decided not to study by failing to pay his fees in circumstances where his parents had the money to pay and where the University had told him that his enrolment would be cancelled if he did not pay his fees, and because he failed to re-enrol in the architecture course between May 2016 and March 2016 when his visa was cancelled, the applicant may not have the will or desire to complete the architecture degree.

21. The applicant said that he did want to complete the course and said that it had always been his plan to complete the course.

22. The Tribunal gave the applicant two weeks after the hearing to provide the Tribunal further evidence of his academic record and evidence of his attempts to re-enrol in the architecture course after his enrolment was cancelled in May 2016.

23. On 5 February 2018 the applicant’s representative provided further material and submissions.

24. The material consisted of a course list “for students commencing their study in Semester 1 2015’’ a copy of the applicant’s academic transcript from [University 1] and emails from two admissions officers at [University 1].

25. The applicant contended that the course list showed that the applicant could not have enrolled in the second semester 2016 as the units in the second semester of 2016 had pre-requisite units which the applicant had yet to complete. Those units were:

    “Construction materials and Practice OR Structure and the Environment

    Architecture Studio 3

    Listed elective OR Undergraduate free-choice elective/s.”

26. The applicant contended that his academic transcript proved that he successfully completed the first semester of 2015. The applicant contended that the emails from the admissions officers demonstrated that the applicant made attempts to re-enrol at [University 1] after his enrolment was cancelled in the first semester of 2016.

27. Rather than supporting the applicant’s case and the claims he has made, the Tribunal considers that, on the whole, the material provided after the hearing tends to support a decision that the delegate’s decision should be affirmed.

28. First, the course outline shows that the applicant could have taken one or more elective units in the second semester 2016. Further, it is clear that the “Construction materials and practice” and “Structure and the environment” units did not have prerequisite units that the applicant had yet to complete as they were offered in Semester 2 of 2015 and the applicant had in fact been enrolled in the “Structure and the environment” unit in that semester. Although the Tribunal is willing to accept that the “Architecture studio 3” unit required the applicant to have completed “Architecture studio 1” and “Architecture studio 2” units it appears that the applicant could have enrolled in “Architecture studio 1” as it was a second semester unit and the applicant had previously been enrolled in that unit in semester 2 of 2015. Thus, there was no reason why the applicant could not have been enrolled in a full semester of units in semester 2 of 2016.

29. In addition, while the applicant claimed at the hearing that he had only withdrawn from one unit and had passed the other three in the second semester of 2015, his academic record clearly shows that the applicant did not pass any units in the second semester of 2015. Thus, there is no apparent reason why the applicant could not have simply enrolled in the second semester 2016 for all of the units that he failed in the second semester 2015.

30. Further, there is nothing in the material that the applicant has provided which indicates that he was ever told that he could not have enrolled in the second semester 2016 or that he ever attempted to do so. There is an email from an admission officer which appears to indicate that the applicant requested readmission at some time in August 2016. The email asked for basic information from the applicant regarding what he had been doing since the second semester 2015 and what his proposed study intentions were. There is no evidence of any response to this email by the applicant.

31. The emails from the second admissions officer were dated 28 February 2017 and 21 March 2017. The first two emails on 28 February again appear to be in response to a re-admission request. One of the emails again asks the applicant to provide information as to what the applicant had been doing since the second semester 2015 and requested the applicant to provide copies of his passport and current visa. The second email of 28 February indicated that if the applicant’s readmission request was approved he would have to pay a deposit fee “plus your OHSC.”

32. The email from 21 March 2017 appears to have been in response to an email from the applicant on 20 March 2017 in which the applicant forwarded medical certificates from Colombia and explained that he had yet to receive Australian medical certificates. The response thanked the applicant for the information, noted that the University was still awaiting the Australian medical certificates and requested the applicant’s transcripts for the certificate II course in creative industries that the applicant had enrolled in at EIP International College.

33. The Tribunal has decided to affirm the decision under review. The Tribunal finds that the applicant does not have the will or desire to successfully undertake a higher education course in Australia. The Tribunal accepts that the applicant had some medical issues in the second half of 2015 and that this may have affected his ability to study. However, the applicant did not assert that his medical problems in 2015 had any effect on his ability to study in 2016 or 2017. Rather, the applicant decided not to study in the first semester 2016 as he decided that he did not want his parents to pay his fees. The applicant admitted that he received a letter from the University in around April 2016 that indicated that if the applicant did not pay his fees his enrolment would be cancelled. His evidence was that even though his parents had the money to pay the fees he did not pay the fees and his enrolment was cancelled in May 2016.

34. The Tribunal does not accept that the applicant could not enrol in the second semester 2016 because there were insufficient units for him to take or because he was told this by an admissions officer at the University. First, as discussed above, it was clear that the applicant could have enrolled in a full time course in the second semester of 2016, at the very least by repeating the very units that he failed in the second semester 2015. Further there is no evidence other than the applicant’s oral evidence that he was told that he could not enrol for the reasons he gave and there is no reason why he would have been told this seeing that it was clear that the applicant could have enrolled in the second semester 2016.

35. The applicant has also been untruthful with the Tribunal by indicating that he completed units in the second semester 2015 whereas it is clear from his academic transcript that he did not pass any units in the second semester 2016. The Tribunal considers that a reason for this untruthfulness was to support the applicant’s claim that there were insufficient units in the second semester of 2016 in which he could enrol.

36. Thus, the Tribunal has found that the applicant effectively withdrew from the first semester 2016, he then failed to enrol in the second semester of 2016 and lied to the Tribunal as to why he failed to enrol. It then appears that in August 2016 the applicant applied for re-admission in the first semester of 2017 but failed to follow this through. He then appeared to apply for re-admission in late February 2017 but again failed to follow through with the process of re-admission.

37. The Tribunal accepts that the applicant’s best friend was accused of a crime in late 2016 and committed suicide in December 2016. The Tribunal accepts that this would have caused the applicant great distress. The Tribunal also accepts that the applicant was involved in helping his friend before he died and helping his friend’s family after his friend died. However, the applicant’s visa was granted on the understanding that the applicant would undertake a higher education course in Australia. The Tribunal finds that the applicant’s actions in failing to pay his fees in the first semester 2016, failing to seek enrolment in the second semester of 2016 and then failing to secure enrolment in the first semester 2017 strongly indicate that the applicant does not have the will or desire to successfully undertake a higher education course in Australia.

38. The Tribunal is willing to accept that the applicant and his family members may experience disappointment that the applicant’s visa was cancelled before he was able to complete a course in Australia. The Tribunal has also considered that, as the applicant’s visa has been cancelled, he may have to wait for some time to be granted another visa in Australia. However, any difficulties which the applicant now faces are of the applicant’s own making. It was the applicant’s responsibility to comply with the conditions of his visa and to inform himself of those conditions. The applicant had every chance to study the courses for which he came to Australia to study.

39. In any event, the Tribunal finds that the applicant’s lack of desire to successfully undertake a registered course in Australia heavily outweighs any hardship that he or his family members may face because of the cancellation of the applicant’s visa.

1. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

2. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

   Tigiilagi Eteuati
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

   (2)A holder meets the requirements of this subclause if:

   (a)the holder is enrolled in a registered course; or

   (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

   (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

   (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.