Teixeira de Castro (Migration)

Teixeira de Castro (Migration) [2022] AATA 4831 (28 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Victor Teixeira de Castro
CASE NUMBER:  2110032
HOME AFFAIRS REFERENCE(S):          BCC2021/1287295
MEMBER:Penelope Hunter
DATE:28 November 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 28 November 2022 at 9:24am
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant did not comply with condition 8202 – was not enrolled in a registered course – there will be a degree of hardship for the applicant – criminal charges –responses provided by the applicant to the adverse information were spontaneous and genuine – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 30 July 2021 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 (Cth) (the Act).
The delegate cancelled the visa pursuant to s 116(1)(b) of the Act on the basis that the applicant was found not to have complied with a condition of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 3 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a 23-year-old Brazilian national, who arrived in Australia on 9 August 2019. He applied for the visa the subject of this application in October 2020 and it was granted on 16 April 2021, for him to undertake study in a Diploma of Social Media Marketing and an Advanced Diploma of Marketing and Communication at Australian Pacific College. This visa was subject to, among others, condition 8202.
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 (Cth) (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?
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 full-time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the 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)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.
On 13 July 2021, the Department wrote to the applicant with a Notice of Intention to Consider Cancellation, noting that the applicant had not been enrolled in a course since 11 May 2021 and inviting comment.
On 19 July 2021, the applicant provided a response. He acknowledged a period of non-enrolment but claimed that he was advised that he could be without enrolment for a period of two months without breaching his visa condition. The applicant claimed that he had been impacted by the Covid-19 pandemic and his finances had been affected and there was a misunderstanding with his education provider. On 20 July 2021 the applicant provided to the Department a letter of offer from Australian Pacific College issued 19 July 2021 in a Diploma of Social Media Marketing and an Advanced Diploma of Marketing and Communication.
The delegate found on 30 July 2021 that the applicant had not been enrolled in a course of study since 11 May 2021 when his enrolment was cancelled. The delegate notes in their decision record that the applicant’s Provider Registration and International Student Management System (PRISMS) records set out that he did not pay any fees for the Diploma of Social Media Marketing and the Advanced Diploma of Marketing and Communication and the courses were eventually cancelled by the provider on 11 May 2021 as he did not commence studies. Consequently the delegate proceeded to cancel the applicant’s visa. The applicant submitted to the Tribunal a copy of the delegate’s decision record.
In his evidence before the Tribunal on 3 November 2022, the applicant did not dispute that his enrolment in the Diploma of Social Media Marketing and his enrolment in the Advanced Diploma of Marketing and Communication were cancelled as of 11 May 2021. The applicant further confirmed that when the Department wrote to him on 13 July 2021, he did not have a valid enrolment. The applicant confirmed that he was aware that there were conditions upon the granting of his student visa. He confirmed that he knew that he was to be enrolled in a course of study. He submitted that he had been told by his migration agent that he could be without an enrolment for a period of two months and not be in breach of his visa condition. The Tribunal is unaware of this grace period; it has reviewed the Regulations and the relevant Departmental Procedures Advice Manual and cannot find material to support the applicant’s claim. He has also produced no independent evidence to support his belief.
Therefore on the material before it, the Tribunal is satisfied that the applicant, as at the date of the delegate’s decision was not enrolled full time in a registered course. The applicant was not enrolled between the period 11 May 2021 and 30 July 2021. Accordingly, the applicant has not complied with condition 8202(2)(a).
As the applicant has failed to comply with the visa condition, the ground for cancellation in s 116(1)(b) does arise.
Consideration of the discretion to cancel the visa
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 Procedural Instruction ‘General visa cancellation powers’.
Following the hearing, the applicant submitted the following documents for consideration by the Tribunal:
·Screenshots of messages between the applicant and his education provider between May 2020 and May 2021.
·Records of results for the applicant at the Australian Pacific College.
·Screenshots of the applicant’s bank transfers on 9 October 2020 and 27 October 2022.
·Statement of attainment issued to the applicant in the Diploma of Marketing and Communication, Australian Pacific College dated 28 April 2021.
·Tax invoice from Yes Education Australia for enrolment in a Diploma of Business dated 4 September 2022.
·Confirmation of Enrolment in a Diploma of Business with course dates from 9 January 2023 to 7 January 2024, at Trinity Institute (Australia) created on 27 October 2022.
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
The purpose of the applicant’s travel and stay in Australia was to undertake study. The relevant visa cancelled by the Department was granted to the applicant on 16 April 2021 for him to undertake study in the Diploma of Social Media Marketing and an Advanced Diploma of Marketing and Communication. The applicant did not complete either of these courses, however he has provided evidence to the Tribunal of substantial completion of his Diploma of Social Media Marketing and other units which could also be used as credit for a Diploma of Marketing.
The applicant told the Tribunal that he wished to study and obtain some qualifications in Australia that would assist him with his future career in Brazil. He hoped to undertake university study in Brazil and wished to improve his English skills and have some basic business and marketing knowledge. He wished to complete a qualification in Australia to set himself up academically for further study in his home country and to assist his intentions to undertake a future career in event management.
The applicant further claimed that he had a need to remain in Australia to seek medical treatment. He had broken his foot several weeks before the hearing playing soccer. The applicant told the Tribunal that the break was significant. He had plates and screws inserted and was still unable to weight-bear on his leg for another month. The applicant claimed that he would require further surgery in six months to have the hardware removed from his leg. The applicant claimed that he wished to remain in Australia to complete treatment for this injury. He acknowledged that medical services would be available to him in Brazil, but claimed that he would have difficulty in the near future undertaking a long-haul flight to his home country.
The Tribunal has considered the claim of the applicant that he wished to obtain an Australian qualification before he returned to Brazil, and to improve his English. It also notes that he has been in Australia since 2019, and other than a course in General English has failed to complete any of his previous courses. It is accepted from the statement of attainment submitted that he had achieved significant progress in the Diploma of Social Media Marketing prior to his enrolment cancellation. Overall the Tribunal gives this factor neutral weight. In doing so the Tribunal notes the ongoing medical treatment being received by the applicant yet this is not the purpose of the student visa and it is not the case that the applicant will be unable to access treatment.
The extent of compliance with visa conditions
The Tribunal notes that the duration of the applicant’s non-enrolment was just over two months, and he believed that he was able to be without enrolment for two months and further that he was in the process of arranging a new enrolment. However, the grounds for cancellation arose because the applicant did not comply with a condition of his visa, and was not enrolled in a full-time course of study.
There is no evidence before the Tribunal that the applicant has not complied with any other condition of his visa.
The Tribunal gives this factor some weight in favour of the cancellation of the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant considered that his family would experience hardship if he was required to return. He was currently able to support himself in Australia and the financial situation in Brazil was not good due to the pandemic. This had been difficult on his family financially and he did not wish to add to their burden. Further the applicant claimed that it would not be good for him emotionally to have to return home without an Australian qualification for what he considered to be a misunderstanding between himself and his education provider. Finally the applicant was concerned about his brother and claimed that his brother was intending to also come and undertake study in Australia in the next year and he was worried how a cancellation would impact on visa applications for his family members.
The Tribunal accepts that there will be a degree of hardship for the applicant and gives this consideration some weight in his favour.
Circumstances in which ground of cancellation arose
The grounds for cancellation arose because the applicant was not enrolled from 11 May 2021 to 30 July 2021 in a full-time course of study, in non-compliance with a condition of his visa.
The applicant submitted that his enrolment was cancelled by Australian Pacific College because he had not paid relevant fees. The applicant submitted that he had struggled financially due to the impact of the Covid-19 pandemic. He was unable to maintain regular employment which impacted on his ability to fund his everyday living. The situation was also difficult for his family in Brazil, he claimed that his parents were broke and he did not feel he was able to call on them for assistance.
The applicant said that he was having difficulty paying for the next instalment of his course fees. He spoke with his education provider and they told him he could be granted an extension and that he had to make the payment by 14 May 2021 or his enrolment would be cancelled. The applicant set about assembling the relevant funds, then he received a further communication that he had to pay by 7 May 2021. He tried to communicate with them but on 11 May 2021 they proceeded to cancel his enrolment in his courses anyway. In support of his claims the applicant has produced extracts of his Commonwealth Bank Statement which documents that he relevant funds to pay fees on 14 May 2021.
After his enrolment was cancelled when asked by the Tribunal why he did not immediately pay the fees and have his enrolment reinstated the applicant admitted to the Tribunal that he was annoyed with his education provider. He had already experienced some difficulty with the course delivery online and constant difficulty contacting his education provider to discuss matters. The applicant has produced screenshots of messages that he had sent to Australian Pacific College seeking assistance with course matters and fee payments. He spoke with his education agent about enrolling in a different course. The applicant claimed that his education agent informed him that this would not be a problem and that he had eight weeks before he had to obtain a new enrolment on his visa. The applicant repaid the funds for course fees he had borrowed and applied some of the other money towards his rent. The applicant said that he was considering his enrolment options when he received the Department’s NOICC. He further claimed that he only obtained an offer of enrolment and did not re-enrol in a course after receipt of the NOICC because his education agent assured him that if he was able to demonstrate to the Department that he intended to resume study his enrolment would not be cancelled. The applicant submitted that he knew that he should abide by the conditions of his visa, but he was misled as to the requirements of those conditions, also he lost control of his finances and there was a misunderstanding with his school.
The Tribunal acknowledges that a condition for the grant of a student visa is that an applicant will have access to sufficient funds to meet the costs and expenses of their intended stay. However, the conditions that arose due to the Covid-19 pandemic were exceptional. The applicant explained that he was working at the time for a removalist company. Due to lockdown restrictions associated with the pandemic people were unable to move and he could not maintain regular shifts. He had difficulty obtaining alternate employment due to a large number of business shutdowns and the fact that he was the holder of a bridging visa. The Tribunal also takes note of the reported impact of the Covid-19 pandemic on all world economies, including Brazil which was hard hit experiencing a decline in GDP, surging inflation, lockdowns, a growth in poverty and possibly the second highest death rate worldwide.[1] It is acknowledged that global circumstances impacted on his ability to fund his studies.
[1] Brazil: Sustaining a Strong Recovery (imf.org)
The Tribunal has also considered the claims of the applicant that there was a miscommunication with his education provider and these claims appear to be supported by his bank statement and records of his communication with his provider submitted to the Tribunal. It is accepted that the applicant genuinely believed that he had additional time to pay the remainder of his fees and intended to do so to avoid cancellation. Finally it is acknowledged that the applicant was acting on the advice of his education agent. Although it is his responsibility to ensure he abides by relevant conditions and it may have been prudent to check independently the impact of the cancellation, it is noted that the applicant had cancelled courses previously without impact on his visa. It is also accepted that the applicant had no reason to doubt the advice that he received.
Overall in the particular circumstances the Tribunal gives this consideration weight in the applicant’s favour.
Past and present behaviour of the visa holder towards the Department
There is no evidence that the applicant had not been cooperative in his dealings with the Department. The Tribunal gives this consideration some weight in the applicant’s favour.
Whether there would be consequential cancellations under s 140
The applicant claimed to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. There is no weight attributed to this factor.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
There are mandatory legal consequences that may apply in the case of visa cancellation, including a difficulty obtaining a further visa. If the visa is cancelled the applicant may be subject to a restriction under s 48 of the Act and the applicant would have difficulties obtaining any further visas in Australia. Due to the operation of PIC 4013, the applicant would also be unable to be granted further visas offshore for three years from the date of cancellation.
The applicant told the Tribunal that if the visa remained cancelled and he had exhausted or ceased all lawful avenues of review, he would abide by any lawful direction to depart. The Tribunal is satisfied in these circumstances that the likelihood of the applicant being detained is remote.
The applicant also expressed concern about the impact of any visa cancellation on future visa application to other countries. The Tribunal accepts that in the event the applicant’s visa remains cancelled this occurrence may be required to be disclosed in any future visa applications.
The Tribunal gives this consideration some weight in favour of the applicant.
Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The applicant is a citizen of Brazil and there is no information that his visa cancellation would impact on Australia’s international obligations. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations. Nor has the applicant applied for refugee status or invoked Australia’s protection obligations. The applicant told the Tribunal that he had no fear of returning to Brazil and intended to do so upon the completion of his Diploma of Business. The applicant has no children whose interests the Tribunal is to consider.

There is no weight attributed to this factor.
Any other relevant matters
There was information contained within the Department file that the applicant had been engaged in conduct that might bring a risk to the Australian community while onshore. The Tribunal invited the applicant to comment on this information pursuant to the provisions of s 359AA of the Act. Particularly, the applicant is recorded as being identified as the consignee in an offshore detection of cocaine, further he was alleged to have made threats to kill his wife and daughter and that he was the subject of a Family Violence Order. Furthermore it was documented that the applicant had been charged on 4 March 2020 with the theft of a motor vehicle. The applicant was advised that if this history of alleged offending was correct the information was important as it indicated that his ongoing presence in Australia may be a risk to the Australian community.
The applicant elected to respond immediately and denied all of the alleged offences. The applicant claimed that he had never been charged with any offences in Australia. He denied that he had a wife or daughter or that he was subject to an interim Family Violence Order. He confirmed that he did have a partner in Australia and they did separate in 2019 and this prompted his relocation to NSW but they did not have a child and there were no threats of violence. The applicant further denied any drug-related offences or that he had been charged with any motor vehicle offences. He told the Tribunal that his only interaction with the police had been when he was stopped for a roadside random drug and alcohol test. He passed the test although the police informed him at the time that he had some unpaid fines which turned out to have been issued to another person in his name. The applicant claimed that he had never lived at a Waterloo address and said that he had misplaced his passport in the past and had concerns that someone may have been using his identity.
It was considered that the responses provided by the applicant to the adverse information were spontaneous and genuine. The records on the Department file carry no additional information as to the source of the reports or whether their accuracy has been verified. There is no evidence before the Tribunal that the applicant has been charged with any offences and on the limited information provided the Tribunal cannot make any finding that he has engaged in the alleged conduct. In the circumstances the Tribunal is unable to afford any weight to the information and the Tribunal has not had regard to it in assessing whether the visa should be cancelled.
Conclusion
The Tribunal has considered the applicant’s circumstances and weighed the relevant considerations as discussed above. In balancing these matter it is satisfied that as a whole there are aspects that are significantly favourable to the applicant as discussed above. Particularly considering the reasons the grounds for cancellation arose, the duration of the relevant non-compliance, the consequences of cancellation, the degree of hardship and his cooperation with the Department.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Penelope Hunter
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.

[2022] AATA 4831

28 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction