Saco Vertiz (Migration)

[2019] AATA 6629

Saco Vertiz (Migration) [2019] AATA 6629 (28 November 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Diego Alejandro Saco Vertiz

CASE NUMBER:  1911080

DIBP REFERENCE(S):  BCC2019/302465

MEMBER:Dominic Triaca

DATE OF DECISION:  28 November 2019

DATE CORRIGENDUM

SIGNED:13 March 2020

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The words ‘For the following reasons, the Tribunal has decided to set aside the decision to cancel the Applicant’s visa’ at paragraph 6 should be replaced with:

‘For the following reasons, the Tribunal has decided to affirm the decision to cancel the Applicant’s visa.

Dominic Triaca
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Diego Alejandro Saco Vertiz

CASE NUMBER:  1911080

HOME AFFAIRS REFERENCE(S):         BCC2019/302465

MEMBER:Dominic Triaca

DATE:28 November 2019

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

Statement made on 28 November 2019 at 4:09pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – payment of course fees – transport injuries – health issues – limited academic progress – applicant maintained employment – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

CASES

Boettcher v Driscoll (2014) SASC 86
Paduano v Minister for Immigration and Multicultural Affairs (2005) 143 FCR 244
R (on the application of M) v Slough Borough Council (2008) WLR 1808   

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.The Applicant is a citizen of Peru. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 29 April 2019 2018 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’) (delegate’s decision).

2.The Applicant’s student visa was granted on 21 February 2017 with an original expiry date of 21 August 2019, providing for just over 2 years 6 months during which the Applicant would be permitted to reside in Australia for the purposes of full-time study. It was his second student visa, the first having been granted in 2016 to enable him to study English. The second visa was granted so that he could successfully complete a Diploma of Sports Coaching at CSF College in Manly.

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 Tribunal convened a hearing to consider the merits of the application on 27 November 2017. The Applicant appeared before the Tribunal in person. He was supported by his Partner, Ms Hackett.

6.For the following reasons, the Tribunal has decided to set aside the decision to cancel the Applicant’s 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’) 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 comply with Condition 8202?

8.Condition 8202(2)(a) of the Applicant’s visa required that he remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 20 April 2018 to 29 April 2019 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to more than 12 months during which the Applicant was alleged to be in continuous breach of the visa.

9.The delegate’s finding 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 20 April 2018. The Applicant’s course provider, CSF, had cancelled his enrolment in the Diploma of Sports Coaching course due to the Applicant failing to pay course fees. The applicant had not enrolled in any other registered course following 20 April 2018.

11.The Department of Immigration and Border Protection wrote to the Applicant on 1 April 2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of Condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa.

12.The Applicant did not respond to the NOICC.

13.At the hearing of the application, the applicant did not dispute that he was in breach of his student visa during the period alleged by the delegate.  He did not dispute that he was in breach of Condition 8202 for the period alleged.

14.Based on the available information and material, the Tribunal is satisfied that the applicant was in breach of condition 8202(2)(a) of his visa for a period of approximately 12 months following 20 April 2018.

Consideration of the discretion to cancel the visa

15.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

16.The applicant’s evidence set out the circumstances giving rise to the breach as follows.

17.He arrived in Australia in 2016 on a student visa that was granted for 6 months to enable him to study English. He subsequently applied for and was granted a further student visa on 21 February 2017. He enrolled in a Diploma of Sports Coaching[2] at CSF in Manly.

[2] The applicant did not state the specific AQF level of the sports coaching course he enrolled in during his evidence. For the purpose of this decision, I assume that the applicant’s enrolment was in a Diploma of Sports Coaching. If, in fact, he was enrolled in a lower or higher level course I do not consider that this difference has any bearing on this decision.

18.He reports that his background is that he held a purple belt in Brazilian Jujitsu and hoped to obtain a certificate to enable him to become a sports coach. He understood the course would take him approximately 2.5 years to complete.

19.In January 2017 he was involved in a bus accident whilst travelling on public transport. He was injured in that accident suffering chest and elbow injuries. He provided a copy of a Medical Report from the Royal North Shore Hospital in Sydney. The report confirms that he was admitted to Emergency at the Hospital on 17 January 2017. He says that he was transported by ambulance.

20.Whilst he describes his injuries as ‘minor’, he stated that he was affected by his injuries as he was unable to work in his labouring job for a period of approximately 2 months. He suffered some economic distress because of his inability to work and he suffered some depression as a result.

21.He did not provide any medical evidence in relation to any mental health issues. He says that he attended a Doctor, and obtained a medical certificate at the relevant time and this certificate was provided to and accepted by the course provider. He stated that he ‘fell behind’ in his studies, and it appears that the education provider tolerated slow academic progress on his behalf on account of his injuries and the material he provided in 2017.

22.Notwithstanding the accident, he commenced the Sports Coaching course in in 2017. He stated that the education provider was accommodating and allowed him to pay his fees over time on account of his setback. It was not until approximately April 2018, when he was unable to pay fees of approximately $1,600, that that his enrolment cancelled his CoE.

23.He says that around March 2018 he decided to move to Brisbane. He spoke to his agent and obtained a provisional letter of offer from Australian Pacific College on 8 March 2018 to study a Diploma of Leadership and Management. However, he was says he was unable to obtain a CoE from that institute and he did not enrol. He says that he did not enrol in any further course and he has not studied in Australia since the cancellation of his enrolment in April 2018.

24.He believes that the reason he was unable to obtain a CoE for study at Australian Pacific College was due to the dispute with CSF in relation to unpaid fees. In any event, he did move to Brisbane and he was in Brisbane for between 4 and 5 months. During that time he found work as a labourer.

25.In or about July 2018 he returned to Sydney. He states that he “was trying to sort out” his visa. However, he was unable to do so. He spoke to an agent who did not hold out much hope for him. He says he spoke to friends who indicated that he would not be able to resolve his visa status. During this time he met his partner and he continued to enjoy life in Australia. He continued to work as a labourer. He said that his lack of study during this period was also due to a “lack of commitment” on his part.

26.He received the NOICC in April 2019 and the delegate’s decision. He was advised to “appeal” the delegate’s decision and he sought a review of it within the allowable time.

27.The Tribunal accepts his evidence that he was injured in a bus accident. It also accepts that he was affected by these injuries beyond the ‘one day’ he spent in Hospital in January 2017. The Tribunal accepts that the applicant may have had some depression associated with the financial and physical impact of the accident. He said that he was concerned about travelling on busses following the accident which is understandable.

28.The applicant’s evidence in relation to his depression falls far short of establishing that he was unable to study for any length of time due to a diagnosable mental health disorder. He has provided no medical evidence to the Tribunal in relation to depression and it does not appear that he was prevented from studying or prevented from re-enrolling due to mental health issues. To the contrary, the applicant was able to continue to work as a labourer, maintained his enrolment as CSF for over 12 months after the accident and took steps to attempt to enrol in a new course in Brisbane in March 2018. He has continued to be able to work in labouring jobs in Australia since that period.

29.Further, the bus accident occurred in January 2017 and on the evidence before the Tribunal, any residual issues had long since subsided at the time of the initial breach in April 2018, noting that the applicant was able to resume work as a labourer within a couple of months of the accident. He also appears to have enrolled in his chosen course and undertaken some study during 2017. By the time the breach occurred, the applicant had taken steps towards moving to Brisbane and investigating a change of course to study a Diploma of Leadership and Management in Brisbane.

30.It is apparent that the following occurred in 2018. The applicant was not able or chose not to pay his fees to CSF of $1600. He decided to leave Sydney and move to Brisbane. He wished to study further in Brisbane, but was unable to arrange to transfer his studies. He believes this was due to the non-payment of fees to CSF and, whilst there is no documentary evidence to support this evidence, it seems likely that the applicant was unable to obtain a further CoE for a period due to his dispute with CSF in relation to fees.

31.The applicant’s CoE was cancelled in April 2018. He moved to Brisbane in about March 2018 and found work as a labourer. He undertook no form of study whilst in Brisbane.  He remained there until about July 2018 when he returned to Sydney. Again, he worked as a labourer and did not study. It is not apparent that he took any meaningful steps to try to resolve his enrolment or return to study during this period. He says he met his partner during this time. He was “living life” and enjoying himself. He stated he “lacked commitment” during this period.

32.The Tribunal considers that the applicant’s breach of the conditions of his student visa is significant. He was in breach of the student visa for a period of approximately 12 months and does not appear to have taken any meaningful steps to resolve the situation and re-enrol in a registered course. It considers that he had ample time to assess the situation and take steps to resolve it.

Extent of Applicant’s Compliance with Visa Conditions

33.Apart from the Applicant’s non-compliance with Condition 8202, the Tribunal is not aware of any other breaches of his visa conditions. For the reasons expressed above, the Tribunal considers the applicant’s breach of Condition 8202 is a significant breach. He was in continuous breach of his student visa for approximately 12 months.

Purpose of the Applicant’s travel and stay in Australia; whether the applicant holds a compelling need to travel to or remain in Australia.

34.The Tribunal accepts the applicant’s purpose of travel to Australia was to study. This is evidenced by his initial enrolment. It also accepts that, for a period, he did study in the sports coaching course in 2017 and early 2018. Whilst the applicant did not provide any documentation to demonstrate the extent of his academic progress in the sports coaching, I accept he did make some progress during the time he was enrolled and, if that progress was slowed, it was due in part to the difficulties he faced in relation to the bus accident as set out above. However, it is apparent that from about April 2018 the applicant’s purpose of residing in Australia was no longer studying. It does not appear that the applicant’s purpose has evolved further since the initial breach of the student visa. There is no evidence that he has taken any meaningful steps to return to study since mid-2018.

35.It is difficult to place much weight on the applicant’s statement that he would return to study if given the opportunity to do so. He says that he would like to return to study sports coaching. He does not appear to have investigated whether this course is offered elsewhere other than CSF. He says that he is now in a position to settle his dispute in relation to payment of fees with CSF and pay the $1,600 to the college. However, he has not investigated whether or not it is possible for him to return.  

36.The terms ‘compelling’ and ‘need’ are words that ought to be given their ordinary meaning. They are not defined by s 116 of the Act or the PAM3. Crennan J (then sitting in the Federal Court) considered compelling to mean ‘forceful and therefore convincing’[3]. Need is a relative concept. It plainly means more than ‘want’ but falls well short of ‘cannot survive without.’[4] Having regard to these authorities, and the ordinary meaning of the terms, the Tribunal does not consider that the applicant has advanced any compelling need to travel and stay in Australia.

[3] Paduano v Minister for Immigration and Multicultural Affairs (2005) 143 FCR 244 [37] – [45]

[4] See R (on the application of M) v Slough Borough Council (2008) WLR 1808 at [54]; Boettcher v Driscoll (2014) SASC 86 at [41] per David J

Hardship

37.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. He will be disappointed and his family will be disappointed. I also take into account that being required to return to his home country will have consequences for his Australian Partner. I asked him about this during the hearing and he indicated that she would return home with him in that event. That may be the case, however I anticipate that this will result inconvenience for them both and I take this into account. However, I note that this concern must be tempered by the fact that the applicant has breached a fundamental condition of his student visa, the breach was continuous for an extended period of time and his stated explanation was implausible.

Applicant’s Behaviour towards Department

38.The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department of Home Affairs. He has been co-operative in assisting the Department towards the resolution of this matter.

Other Visa Holders

39.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

40.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.

41.The Tribunal considers these consequences are the intended consequences of the legislation when a visa is cancelled on these grounds. It reflects the seriousness of visa conditions.

International Obligations

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

Conclusion

43.In all the circumstances, the Tribunal is of view that the applicant’s student visa should be cancelled.

DECISION

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

D. Triaca
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.