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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Saco Vertiz (Migration)

Details

AGLC: Saco Vertiz (Migration) [2019] AATA 6629
Case: [2019] AATA 6629
Decision Date: 28 November 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Saco Vertiz concerning the cancellation of Student (Temporary) (Class TU) visas, subclass 500. The applicant, Ms. Vertiz, had her visa cancelled by the Department of Home Affairs due to ceasing enrolment in a registered course. Ms. Vertiz sought review of this decision before the AAT.

The primary legal issue before the Tribunal was whether the applicant had met the criteria for maintaining her student visa, specifically in relation to her enrolment and academic progress, despite circumstances that led to her ceasing her course. The Tribunal was required to assess whether the reasons provided by the applicant for her non-compliance with visa conditions constituted a sufficient basis to set aside the Department's decision.

The Tribunal acknowledged the applicant's evidence regarding transport injuries and subsequent health issues, which impacted her ability to attend her studies. It also noted her continued employment, suggesting an intention to remain in Australia. However, the Tribunal found that these factors did not sufficiently mitigate the fact that she had ceased enrolment in her registered course without making satisfactory academic progress, a core requirement for maintaining a student visa. The Tribunal applied the principles of the *Migration Act 1958* (Cth) and the relevant regulations concerning student visa conditions, concluding that the applicant had not demonstrated that the cancellation decision was not justified.

The Tribunal affirmed the decision of the Department of Home Affairs to cancel Ms. Vertiz's visa.

Orders