Urany (Migration)

[2020] AATA 4493

Urany (Migration) [2020] AATA 4493 (21 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Matheus Urany

CASE NUMBER:  1828838

HOME AFFAIRS REFERENCE(S):          BCC2018/1523416

MEMBER:Frank Russo

DATE:21 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 21 August 2020 at 2:16pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – significant period of breach – girlfriend’s health condition – financial difficulties – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 572 Vocational Education and Training Sector 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 was not enrolled in a registered course of study from 27 October 2017 until the date of the delegate’s decision on 20 September 2018. 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 is a 25-year-old Brazilian national. He first arrived in Australia on 16 February 2016 holding a Visitor visa. He was granted a Student visa on 24 June 2016 to study General English courses and an Advanced Diploma of Information Technology.

4. The application was listed for a hearing before the Tribunal on 6 February 2020, but was postponed as a result of a request received from the applicant on 13 January 2020. The hearing was subsequently listed for hearing on a further two occasions in March and April 2020, but these hearings did not proceed as scheduled as a result of the Tribunal implementing COVID-19 safety precautions.

5. The applicant appeared before the Tribunal by telephone hearing on 18 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

6. 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

7. 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.

8. In addition to the information provided with his application for review, the applicant provided the Tribunal with a copy of the delegate’s decision and responses to the invitations sent to the invitations to attend hearings. The Tribunal has had regard to these documents in making its decision. The Tribunal has also had regard to the documents on the Department file, which include a response from the applicant, dated 21 August 2018, to the Department’s Notice of Intention to Consider Cancellation (NOICC) of the visa.

9. The applicant confirmed at the hearing that he had read and understood the delegate’s reasons for decision.

   Did the applicant comply with Condition 8202?

10. 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 registered course, or in limited cases, a full time course of study or training: 8202(2)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

11. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

12. At the hearing the applicant gave evidence that he arrived in Australia on 7 February 2016 (he arrived on 16 February 2016), holding a Visitor visa. While he was onshore he applied for a Student visa, which he stated was for the purpose of studying English and a vocational course in IT. When questioned whether he remembered the names of the courses, he stated he was enrolled in General English, and then an IT course, although he was not sure of the name of the course.

13. The applicant gave evidence that he studied English for approximately 8 months, but did not complete the General English program or commence the IT course. When questioned whether he remembered the date when he ceased his studies, he stated that he was not too sure, but thought that he had ceased studying in January 2017.

14. Although the applicant’s evidence of his enrolment was overall consistent with the information contained in his enrolment records from the Provider Registration International Student Management System (PRISMS) database, given the applicant expressed uncertainty as to the dates when he commenced and ceased his studies, the Tribunal adopted the procedure in section 359AA of the Act, to put to the applicant information from his enrolment records from the PRISMS database.

15. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant that according to his PRISMS enrolment record, he has had four enrolments in General English courses from 13 June 2016, two of which finished on 2 September 2016 and 6 January 2017. He was enrolled in two General English courses which were to commence on 6 February 2017 and 29 May 2017, however both were cancelled due to non-commencement of studies. The applicant was also enrolled in an Advanced Diploma of Information Technology, which was to start on 25 September 2017 and end on 30 August 2019, but was cancelled on 27 October 2017 due to non-commencement of studies. The Tribunal indicated that the information was relevant because it indicated that he had not been enrolled in a course of study since 27 October 2017.

16. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

17. The applicant indicated that he wished to respond to the information provided from his PRISMS enrolment record at the hearing. He apologised for not remembering the exact dates and names of his courses and indicated that it was an accurate reflection of his enrolment history.

18. From his evidence, the applicant concedes that he was not enrolled in a registered course of study from 27 October 2017 to 20 September 2018, the date of the delegate’s decision, and had failed to maintain his enrolment in accordance with condition 8202. The applicant confirmed that he accepts that there are therefore grounds for cancellation of the visa.

19. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

20. 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’.

    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

21. The applicant told the Tribunal that the purpose for his travel to Australia was to study English and IT. He stated that his plan was to spend three years in Australia and then return to Brazil with an improved CV and opportunities for employment. He stated that his current plan is to stay in Australia for another year, until his partner finishes her course of study, and then to return to his home country. He stated that his partner arrived in Australia in June 2017. He stated that she would complete her studies in Australia in October 2021, but he was unsure of the exact date. He stated that if the Student visa is not cancelled, he intends to go back to school to study English, so he can improve his English, as his intention is to stay for only a further year.

22. The applicant responded to the Department’s NOICC on 21 August 2018. A copy of his response to the Department is contained on the Department file. In his response the applicant stated that his purpose for travelling to and staying in Australia was to study English and IT. There is no evidence to suggest that the applicant’s original purpose for travelling to, and staying in Australia was for reasons other than the purpose of study.

23. The Tribunal however gives very little weight to this consideration in favour of not cancelling the visa, given the applicant’s stated intention is to remain in Australia for a further year while his partner completes her studies. The applicant gave evidence that given his intention to remain in Australia for only a further year, he intends to use this time to study and improve his English, rather than to study Information Technology. The Tribunal notes that the applicant has not been enrolled in a course of study since 27 October 2017, a period of over two years and nine months. On the applicant’s own evidence, he ceased studying in January 2017, and this is consistent with his PRISMS enrolment record, which indicates that he did not commence his General English course on 6 February 2017. There is no information to indicate that the applicant’s visa cancellation affected his ability to enrol in further English courses. The Tribunal considers the applicant has had sufficient time to enrol in further English courses if that was his intention, and therefore gives this consideration little weight against cancelling the visa.

    The extent of compliance with visa conditions

24. The applicant conceded at hearing that he did not comply with condition 8202 of his Student visa by not maintaining enrolment in a registered course of study from 27 October 2017 to the date of the delegate’s decision on 20 September 2018. This is a period of almost 11 months, which the Tribunal considers to be a significant period of breach. The Tribunal also notes that prior to ceasing his studies in January 2017, the applicant had only been studying in Australia for a period of six to seven months, since 13 June 2016. Although he was enrolled in a course of study until 27 October 2017, on his own evidence, the applicant did not attend his courses of study after January 2017. This is supported by the information in his PRISMS enrolment record, which indicates that the applicant did not commence his General English course on 6 February 2017.

25. The applicant told the Tribunal that he has abided by all of the other conditions of his Student visa, as well as the conditions of his Bridging visa, including following the work limitation condition. He stated that he has been working in construction, as a renderer. There is no evidence before the Tribunal of other breaches by the applicant of his visa conditions. However, given the extent of the breach of the enrolment condition and the applicant’s limited period of attendance in his courses of study, the Tribunal gives this consideration little weight against cancelling the visa.

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

26. When asked about the degree of hardship that may be caused as a result of the cancellation of his visa, the applicant stated that it would mean that he would be far away from his girlfriend, whom he intends to marry. He stated that this would be the only hardship, and stated that there would be no hardship to members of his family.

27. The Tribunal notes that the applicant did not provide any details of hardship in his response to the NOICC issued by the Department. The Tribunal acknowledges that the applicant may face some hardship in being away from his girlfriend for the year that she is undertaking her studies in Australia, and the Tribunal also considers that the applicant’s girlfriend may experience some hardship if the applicant is not in Australia to support her with her studies. The applicant did not provide any evidence of financial hardship to himself or his girlfriend if the visa is cancelled, but the Tribunal considers the applicant, and possibly also his girlfriend, may experience some financial difficulties, given the applicant has been working as a rendered and there is no evidence of any jobs which have been offered to him in his home country.

28. Although the Tribunal acknowledges the applicant and his girlfriend may experience some hardship as a result of the cancellation of the visa, the Tribunal gives this only little weight against cancelling the visa.

    Circumstances in which ground of cancellation arose

29. The applicant gave evidence that initially everything was going fine with his studies. He stated that his plan was to remain in Australia for 3 years and then return to his home country. However, he received a phone call in January 2017 from his girlfriend’s mother, informing him that his girlfriend was sick again with a condition she had experienced previously. He stated that he made a ‘desperate decision’ and went back to Brazil in February 2017 to be with her. He stated that he found it very difficult when he was in Brazil, and so decided to bring her with him to Australia when he returned in March 2017. He stated that when he brought her to Australia, he tried to maintain himself, but his girlfriend arrived with a Visitor visa and she had no permission to work. He stated that even though he had sufficient money for his own stay, he had to spend it on treatment for his girlfriend, as well as some on the airline ticket. As a result, he did not have any money left to study. He stated that he saved some money to apply for her Student visa, and that was the reason why he breached the conditions.

30. When questioned whether he considered that any aspect of these circumstances were beyond his control, the applicant responded that his girlfriend’s illness was beyond his control, but there were no other aspects which were beyond his control. When questioned whether he considered deferring his studies or returning to his home country until he was in a position to meet his visa conditions, the applicant stated that was excited about his course in Australia and wanted to ‘have something’ upon his return to his home country, and stated that without having obtained a qualification he did not think about returning to his home country.

31. The Tribunal also notes that in his response to the NOICC, the applicant indicates that his girlfriend’s medical condition was first diagnosed in 2015, and that when he left Brazil she was in a good condition. He stated that when he returned to Brazil on 8 February 2017, he asked his agent what he could do to stop his studies while he went to Brazil. He stated that he filled out some papers. He stated that he stayed in Brazil until his girlfriend became better, and then asked her whether she wished to come to Australia with him. He stated that after he returned to Australia in March 2017, he planned to bring her to Australia. He stated that he became worried and lost focus on his studies. In June 2017 his girlfriend arrived in Australia and he worked hard to apply for a Student visa for her, but he stopped studying because he had to save money for his girlfriend’s visa. As his girlfriend was not working, he was responsible for rent and other expenses. He stated that he was planning to apply for a visa for his girlfriend and ‘join in her visa’. Her visa was approved, but when he was ‘working with’ his agent to become a dependant to her visa, he received the NOICC.

32. The Tribunal found the applicant gave his evidence candidly and accepts his evidence of the events which occurred. While the Tribunal acknowledges the difficulty which the applicant experienced as a result of his girlfriend’s health condition and the financial difficulty in supporting both himself and his girlfriend while they applied for her Student visa, the Tribunal gives these circumstances little weight against cancelling the visa.

33. The Tribunal considers it was the applicant’s responsibility as the holder of the Student visa to ensure that he complied with the conditions of his visa, including the enrolment requirement, and to contact the Department prior to taking action which would significantly change his circumstances. There is no evidence that the applicant contacted the Department prior to ceasing his studies or after the change in his circumstances.

34. The Department file contains a copy of a medical test or report relating to the applicant’s girlfriend, dated 19 October 2015, which is in Portuguese and has not been translated. There is no evidence of any treatment received by the applicant’s girlfriend in January or February 2017, but the Tribunal accepts the applicant’s evidence of the events. While the Tribunal accepts the difficulty which this situation created for the applicant, it does not consider that there were extenuating circumstances which would excuse a breach of the enrolment condition for 11 months.

35. The applicant gave evidence that he ceased his studies in January 2017 and he has not re-enrolled in a course of study since, despite returning to Australia in March 2017 and continuing to work. There is no evidence that the applicant sought to defer his studies following his return to Australia in March 2017. Instead the applicant did not attend classes again, although his enrolment in the Advanced Diploma of Information Technology was not cancelled until 27 November 2017. The Tribunal considers that it is reasonable to expect that if the applicant were unable to study because of the circumstances that he gave in his evidence, that he apply for a deferral of his studies or return to his home country until he is in a position to meet the conditions of his Student visa.

36. While the applicant gave evidence that he was attempting to correct his visa situation by applying for his girlfriend’s visa, after which he intended to become a dependant visa holder, given the length of the breach (approximately 11 months), the Tribunal considers the applicant had more than sufficient time to make such arrangements. The Tribunal does not consider the applicant’s claim of financial difficulties to be extenuating circumstances which would explain the breach, given the extended duration of the breach and the requirement that a visa holder have access to sufficient funds.

37. While the Tribunal notes the applicant’s claims in his response to the NOICC that he became worried and lost focus on his studies, there is no evidence of any medical assessment of the applicant’s mental health to support such a claim.

38. Overall, while the Tribunal acknowledges the circumstances which occurred with the applicant’s girlfriend’s health in early 2017, the Tribunal does not accept that there is evidence of extenuating circumstances that were beyond the applicant’s control, particularly having regard to the length of the breach of the enrolment condition and the considerable period of time (11 months) which the applicant had to remedy the breach or take other actions which would avoid the breach occurring, such as returning to his home country. The Tribunal gives this little weight against cancelling the visa.

    Past and present behaviour of the visa holder towards the department

1. The Delegate noted in the Department’s decision that the applicant has been cooperative with the Department and provided information when requested. In this regard the Tribunal notes the statement the applicant provided to the Department prior to his visa being cancelled. The Tribunal gives this some weight against cancelling the visa.

   Whether there would be consequential cancellations under s.140

2. The applicant confirmed at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. The applicant confirmed that his girlfriend has made a separate Student visa application and that she is not a dependant to the applicant’s visa. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

   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

3. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189, however he could apply for a Bridging visa in order to settle his affairs in Australia. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal asked the applicant whether there were any particular considerations it should have regard to, given these mandatory legal consequences, to which he indicated there were none. The Tribunal has had regard to the applicant’s reasons for wishing to remain in Australia. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

   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

4. Not applicable.

   Any other relevant matters

5. The applicant stated that there were no other matters relevant to the Tribunal’s consideration. The Tribunal finds that there are no other relevant matters and weighs this consideration neither in favour nor against cancelling the visa.

6. The Tribunal considers the applicant’s breach, where he remained unenrolled in a course of study for a period of approximately 11 months, to be significant. The Tribunal has considered the various considerations it must look at as part of the exercise of the discretion, as set out above, and finds that they provide insufficient weight against cancelling the visa.

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

   DECISION

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

   Frank Russo
   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.