Terrones Tafur (Migration) - [2024] AATA 3967

Terrones Tafur (Migration) [2024] AATA 3967 (31 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Miluska Roxana Terrones Tafur
Mr Carlos Alberto Bardalez Diaz
Miss Luciana Mercedes Bardalez Terrones
Master Logan Bardalez Terrones
Master Bastian Bardalez Terrones
REPRESENTATIVE:  Mrs Ameline Aulakh (MARN: 2117712)
CASE NUMBER:  2307411
HOME AFFAIRS REFERENCE(S):          BCC2022/3930763
MEMBER:Christine Kannis
DATE:31 August 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 31 August 2024 at 1:15pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in full-time registered course – discretion to cancel visa – misconduct by agent and civil claim for compensation – childbirth and large medical expenses – mental health – no approach to providers or department – multiple cancellations – new enrolment after receiving department’s notice of intention – members of family unit husband and children – consequential cancellation of visas with no jurisdiction to review – oldest child’s schooling, and younger children born in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348, 359AA
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
CASES
Liu v MIMIA [2003] FCA 1170
Plaintiff M64/2015 v MIBP [2015] HCA 50
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 23 May 2023 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the first named applicant (the applicant) failed to comply with a condition of her 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.
For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The applicant appeared before the Tribunal by MS Teams on 5 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the second and third named applicants, Mr Carlos Alberto Bardalez Diaz and Miss Luciana Mercedes Bardalez Terrones. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The applicants were represented in relation to the review. The representative did not attend the hearing.
For the following reasons, the Tribunal has concluded that the…

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 Terrones Tafur (Migration)

Details

AGLC: Terrones Tafur (Migration) [2024] AATA 3967
Case: [2024] AATA 3967
Decision Date: 31 August 2024

CaseChat Overview and Summary

This matter concerned an application by Terrones Tafur for review of the cancellation of her Student (Temporary) (Class TU) visa, subclass 500. The dispute arose from the applicant's failure to comply with condition 8202(2)(a) of her visa, specifically by not being enrolled in a full-time registered course from 20 January 2022. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal was required to consider the applicant's circumstances in exercising its discretion. The applicant provided a detailed response to the Department's Notice of Intention to Consider Cancellation, outlining a history of significant personal hardships between 2018 and 2022. These included being scammed by a migration agent, leading to financial loss and civil litigation, a difficult pregnancy resulting in miscarriage, the premature birth and death of twins, and subsequent health issues and substantial medical expenses for herself and her surviving twins born in 2020. She also highlighted the emotional and financial toll these events took, impacting her ability to prioritise her studies and seek appropriate support. The applicant stated that she had since enrolled in a new course commencing in December 2022 and that her family's circumstances had improved.

The Tribunal acknowledged the gravity of visa cancellation but, after considering all the circumstances, concluded that the visa should be cancelled. The Tribunal affirmed the decision to cancel the applicant's visa. The Tribunal noted that it had no jurisdiction with respect to the other applicants, who were members of the applicant's family unit.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicants.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.Consideration of the discretion to cancel the visa 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, the witnesses and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. On 21 December 2022, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course from 20 January 2022 and had therefore failed to comply with condition 8202(2)(a) of her visa. Response to NOICC On 9 January 2023, the applicant responded to the NOICC and provided the following information:·She is going to study a Diploma of Project Management and the course commenced on 19 December 2022 and will end on 17 December 2023. ·In 2018 she contacted Quack Study Agency to request a Student visa renewal. She paid the agent $13,213 for a visa plus medical insurance and tuition fees for her English course.·In early April 2018, she attempted to make a health insurance claim and was advised she was not covered. She contacted the agent who told her he needed another $7,000 to activate her insurance. She requested the agent refund her insurance cover money so she could arrange for cover. Despite her repeated requests the agent did not refund the insurance cover money. She stopped contacting the agent when she found out he went to jail. She suffered from psychological issues because she was scammed of thousands of dollars and had a court case against the agent.·Many students were affected and made complaints against the agent and due to the number of complaints and evidence, the agent was convicted and sentenced to community work. In 2020 she won damages in a civil court but it was at a huge mental toll and she has not received any money from the agent who she understands went bankrupt.·Between 2018 to 2022 she and her family encountered extenuating circumstances beyond her control that impacted their lives and her studies.·Between 2018 to 2022 she was being scammed by her agent, she went to court, experienced a difficult pregnancy, took care of her infant children, all while trying to balance studying which was difficult. Throughout this period she did not make her education her priority which she should have done as a Student visa holder. ·In June 2018 she miscarried a baby. The doctors told her stress had caused a lot of tension in her body. She had to pay between $700 and $800 for hospital charges.·In 2019 she was pregnant with twins. She and her family suffered emotional distress when her twins were born prematurely and passed away shortly after birth.·Her next pregnancy was problematic however these twins were born in 2020. She and the twins had health issues and she had significant financial stress due to large medical expenses including $12,000 for hospital care. She suffered emotional stress when she realised her Overseas Student Health Cover (single cover) did not cover her and the twins’ medical expenses. When she was discharged from hospital she owed $73,000. She went into depression, experienced trauma and significant stress and was not able to produce milk for the twins. After the twins’ birth a friend raised $15,000 for her family via GoFundMe which enabled her to obtain family cover insurance and pay some medical debts.·At the time she did not know she had the option to apply for a leave of absence from her institution and the consequences of failing to maintain her enrolment. ·Due to the high tuition fees she was not able to seek legal advice regarding her visa conditions and the consequences and seriousness of her missed studies. Furthermore she was not able to get support for her mental well-being. ·It has been some time since her hardships occurred and she is in a better state mentally to study. Her hardships between 2018 to 2022 have passed.·Her twins are now more than one year old and they are in good health.