Suarez Mayorga (Migration)

[2020] AATA 2347

Suarez Mayorga (Migration) [2020] AATA 2347 (11 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Javier Orlando Suarez Mayorga

CASE NUMBER:  1816829

HOME AFFAIRS REFERENCE(S):          BCC2018/194721

MEMBER:Michael Biviano

DATE:11 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 11 June 2020 at 10:52am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – study difficulties, attempt to enrol in another course, non-attendance, non-payment of fees and cancellation of enrolment – discussions to re-enrol – no further formal study – volunteer work for charity organisation – vague plans for future study – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 June 2018 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).

2. The delegate cancelled the visa on the basis that the applicant had not complied with subclause (2)(a) of condition 8202 of his visa as he was not enrolled in a registered course of study. 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 1 June 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

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

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:

   ·must be enrolled in a full-time registered course: 8202(2)(a);

   ·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: 8202(2)(b);

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was in breach of subclause (2)(a) of condition 8202 of his visa as he was not enrolled in a registered course for the period from 18 July 2017 to 1 June 2018.

9. The decision record of the delegate of the Department of Home Affairs (the Department) on 1 June 2018, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa, which was granted on 13 September 2016, and gives the reasons for the cancellation of the visa (Decision Record).

10. The applicant arrived in Australia on 2 December 2014 from Columbia pursuant to a student visa to study English courses. He obtained his initial visa for 3 months. He then obtained a further student visa for a term of 9 months to complete his English studies in Australia.

11. The Decision Record confirms that on 13 September 2016, the applicant was granted a Student Class TU (Subclass 500) visa on the basis that he was enrolled in the following suite of courses at ALTEC College:

    a.Certificate IV in Information Technology Networking;

    b.Diploma of Information Technology Networking; and

    c.Advanced Diploma of Network Security.

    (Information Technology Courses)

12. Prior to coming to Australia, the applicant had obtained a Bachelor of Engineering Systems in Columbia. He gave evidence that he came to Australia to further his English studies to gain further opportunities in Columbia.

13. The applicant after completing his English studies, commenced studying a Certificate IV in Information Technology at ALTEC College on 8 August 2016.

14. He studied that course for around 6 months.

15. The applicant gave evidence that 2 to 3 months into his studies in the Certificate IV course, he encountered difficulties with studying the course and he did not like the methodology of teaching. The applicant attempted to enrol in a better course somewhere else which was more specialised and more suitable to his knowledge and qualifications. The applicant had numerous discussions with the College about his studies. He sought to be released to study elsewhere. The College recommended the applicant continue studying those courses and then enrol in different courses to expand his knowledge base. At the end of 2016, the applicant ceased attending classes and failed several subjects. The applicant also stopped paying his tuition fees.

16. The applicant claimed that the College then informed him that it was cancelling his enrolment, which would not have come as a surprise to the applicant as he was not attending class, failing subjects and not paying tuition fees. The applicant gave evidence that he knew that he had to maintain enrolment in a course of study to comply with the conditions of his visa. In or about January or February 2017, he had further discussions with the College about getting his studies back on track, paying outstanding fees and being allowed to finish his courses, but he was told by the College that it was too late to re-enrol and that his COE had been cancelled.  Based on the applicant’s evidence, the Tribunal accepts that as at February 2017, the applicant believed that he was no longer enrolled at ALTEC College.

17. The applicant gave evidence that after he had been told by ALTEC College that his enrolment would be cancelled, he sought advice from an agency, West One, who he claimed disappeared and went to Canada and he claimed that ALTEC College had threatened to cancel his visa, by informing the Immigration Department about the cancellation of his enrolment. He claims that after the meeting with the agent he decided to wait to see if his visa would be cancelled as claimed by the College. He confirmed that he did not further enrol in a registered course of study.

18. The Decision Record confirms that the applicant was not enrolled in a registered course of study from 18 July 2017 to the cancellation of the visa on 1 June 2018 and based on the applicant’s evidence the Tribunal finds that the applicant was not enrolled in a registered course of study for that period.

19. The applicant confirmed that he received Notice of Intention to Consider Cancellation (NOICC) of the visa under s.116 of the Act dated 26 March 2018. On 4 April 2017 the applicant provided a response by email, which stated, omitting formalities:

    Dear Stacey,

    I am writing to you to request that the visa not be canceled, because if it happen, the foundation that I belong, would have serious difficulties, a foundation that is dedicated to helping less favoured people in Australia, as are young people with mental and drug addiction problems and students with low economic resources, in this email I attach some documents that confirm that I am a very active member of this Christian foundation.

    I urge you to allow me to solve my problems with the school and allow me to dedicate my free time to this important work, I love helping people and I am giving my time to Australia for this, I hope you consider this request.

20. The applicant did not contest that he had not been enrolled in a course of study from 18 July 2017 to 1 June 2018 or that he was in breach of his visa. The response made no mention of the courses he intended studying. The applicant was more concerned with his activities with the Christian Foundation rather than his studies.

21. On the evidence before the Tribunal, it finds the applicant was not enrolled in a registered course for the period of 10 months and 14 days from 18 July 2017 to 1 June 2018, which is a long period of time. Accordingly, the applicant has not complied with condition 8202(2) for that long period of time. As this was a condition which was attached to his visa, the applicant has therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b).

    Consideration of the discretion to cancel the visa

22. 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 3 (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

23. The applicant gave evidence that he came to Australia pursuant to a student visa and since his arrival in Australia he has been on two further student visas and, as discussed above, he has studied English courses, which was his initial aim when he came to Australia, and since August 2016 he was enrolled to study the Information Technology Courses at ALTEC College, which were cancelled as at 18 July 2017. The applicant came to Australia with the intention to study

24. On the evidence before the Tribunal, the applicant has been in Australia since December 2014 and he undertook continuous studies from December 2014 to early 2017 when he ceased studies at ALTEC College. The applicant did not enrol in a registered course of study from 18 July 2017 to 1 June 2018.

25. The gap in study where he was not enrolled was a period of 10 months and 14 days, which is a very lengthy gap, especially having regard to the applicant’s motive for not enrolling in a course of study, which was that he was awaiting to see what action the Department would take. The lengthy gap of not being enrolled in those circumstances is inconsistent with an intention to study.

26. The applicant claims that since June 2018, he has been undertaking studies for a PTE course to sit his PTE examination. No corroborating evidence was tendered supporting such claims. While the PTE course is not a registered course, it does demonstrate an intention to study. During this time the applicant claims he was studying a PTE course, improving his English and volunteering at the Christian Foundation.  The Tribunal notes that taking nearly 2 years to undertake such studies and examinations appears to be a very long period of time and if he was diligent in those studies, they would have been completed earlier. The applicant claims that he is sitting an exam next month. In any event he has not enrolled in a registered course since 1 June 2018, which is a very long period of time.

27. Further, the applicant gave evidence that if the cancellation of the visa was set aside and he could remain in Australia, he would study a Certificate in HTML5 and computer language programs, which he claimed would assist his knowledge in computers. However, the applicant did not present the details of which course he would study and where, or details of the duration of the course. He claimed that he believed that it would take him 2 to 3 years to complete the studies he wishes to undertake in Australia. While the Tribunal accepts that the applicant intends studying in the future if he remains in Australia, the applicant’s gaps in study while in Australia and his failure to provide detailed information about which course he intends to study and at which institution, creates substantial doubt whether the applicant will undertake such studies.

28. Having regard to the applicant’s evidence, the Tribunal accepts that the applicant had travelled to Australia with an intention to study and studied for part of his duration in Australia, save for a long gap of 10 months and 14 days before the cancellation of his visa. He has remained in Australia studying an unregistered PTE course. In light of his evidence and given his conduct in Australia as set out above, the Tribunal gives this marginal weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

29. The applicant was not enrolled for a period of 10 months and 14 days which is a lengthy period of time. Therefore, the applicant has not complied with condition 8202(2) only for a long period of time. The non-compliance with condition 8202(2) for such a duration, in light of his circumstances, does weigh towards cancelling the visa.

30. As discussed above the applicant in evidence gave a number of reasons why he was not enrolled during that time. The Tribunal does not accept those reasons as a reasonable explanation as to why he was not enrolled. The applicant’s excuse to wait and see if the Department would cancel his visa after his enrolment in the Information Technology Courses ceased does not explain his conduct. The applicant ought to have been aware that it was a condition of his visa to be enrolled in a course of study. The applicant claimed that he checked with the Department by telephone on a number of occasions as to whether his visa had been cancelled as a consequence of the enrolment in the Information Technology Courses being cancelled and it had told him, it had not been cancelled. But the applicant did not seek to enrol and he knew that the primary purpose of the study visa is to study and that he must remain enrolled in a registered course of study. To claim ignorance is not a defence or an excuse for not being enrolled.

31. The Tribunal finds that the long period of non-enrolment and the circumstances of the non‑enrolment were such that the Tribunal gives this factor substantial weight towards the visa not being cancelled.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

32. The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.

33. The applicant gave evidence that the visa cancellation would cause him a substantial degree of hardship as he would be unable to finish his studies in Australia and be unable to learn more in the area on which he wishes to concentrate. He claimed that the level of studies in Columbia were not as good as those in Australia and he had better options here.

34. He claimed that if his visa was cancelled, he would have to consider his options. The applicant claimed that his father is not working and his mother may lose her job in Columbia and he is earning $35,000–$40,000 per annum in Australia and he is remitting $10,000–$15,000 per annum to his parents to assist them. Obviously, the cancellation of the visa would impact them.

35. Apart from English courses that the applicant completed when he came to Australia, he has not completed any tertiary studies in Australia.

36. The applicant gave evidence that the cancellation of the visa would make it very difficult to return home, and he did not believe that he would be able to study because he would be paralysed by the decision to cancel the visa. He claimed that the cancellation would result in lost time, in wasted friendships and relationships, prevent him from helping the Christian Foundation and he would need to go home and go to work, which would be difficult to do in light of current circumstances and economic conditions.

37. The Tribunal accepts that the cancellation of the visa will cause the applicant and his family hardship, but it is important to note that the purpose of the visa is not to enable the applicant to support his family and make friends but to study.

38. The Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters on their own which would constitute a degree of hardship sufficient to weigh against cancelling the visa.

39. The Tribunal considers that the above matters give some weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose

40. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

41. The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.

42. Ultimately, the responsibility regarding enrolment rests with the student, and considering the lengthy duration of the breach and the applicant’s explanation for not being enrolled, the Tribunal is not persuaded by his reasons for non-enrolment as being beyond the visa-holder’s control.

43. The Tribunal has considered the applicant’s explanations as discussed above for why he was not enrolled for such a long time and was therefore in breach of condition 8202(2). The Tribunal gives this matter substantial weight towards the visa being cancelled.

    Past and present behaviour of the visa holder towards the Department

44. According to the Decision Record, the applicant had responded to the NOICC. Further, there was no other evidence that the applicant had been uncooperative towards the Department. The Decision Record also confirmed that there is no evidence that he had been uncooperative with the Department or the Department’s staff. The Tribunal gives this factor little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

45. As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.

    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

46. If the Tribunal decides to affirm the decision to cancel the visa under these grounds, then 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. Further, pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of further visa applications.

47. Further, if the Tribunal decides to affirm the decision to cancel the TU 500 Student visa under these grounds, this will come within the identified risk factors to make the applicant meet public interest criterion 4013, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next three years.

48. However, these consequences are the intended consequences of the legislation when a visa is cancelled under these grounds.

49. The applicant gave evidence that if the visa remained cancelled he would have to return to Columbia, and therefore there is no indication that he would become unlawful or be subject to detention.

50. Accordingly, the Tribunal gives this factor marginal weight towards the visa not being cancelled.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

1. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to Columbia, and he did not give any reasons as to why he could not return to Columbia; and he has not made any claims that relate to this consideration. Accordingly, the Tribunal gives this factor no weight towards the visa not being cancelled.

   If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

2. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.

   Any other relevant matters

3. The Tribunal finds that there are no other relevant matters and it gives this factor no weight   towards the visa not being cancelled.

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

   DECISION

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

   Michael Biviano
   Member

   
   

   ATTACHMENT

   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.