ABEDALQADER (Migration)

[2019] AATA 5692

ABEDALQADER (Migration) [2019] AATA 5692 (29 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HUSSEIN MOHAMMAD HUSSEIN ABEDALQADER

CASE NUMBER:  1707986

HOME AFFAIRS REFERENCE(S):          BCC2017/386876

MEMBER:Justin Owen

DATE:29 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 29 November 2019 at 4:51pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in higher education course – course cancelled – scholarship – change of course  – applicant took actions to mitigate breach – diligently completed course – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 cls 573.223, 573.231, Condition 8516

CASES

Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of the Kingdom of Jordan born 27 May 1985.  His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 19 February 2015 and was subject to condition 8516.  On 3 April 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8516 of his visa, as he was no longer enrolled in a Bachelor or Master degree course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A.  As he had not continued to be a person that would satisfy either subclauses 573.231 or 573.223(1A), the delegate considered that the applicant had not complied with condition 8516 of his visa.    The applicant responded to the NOICC on 6 April 2017.  On 11 April 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8516 of his visa.      

3. The delegate cancelled the visa under s.116(1)(b) on the basis that the delegate was not satisfied that the applicant complied with a condition of his visa, namely condition 8516. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 28 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. 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

7. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8516 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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s116(1). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

9. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 is attached to the applicant’s visa. This condition requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

10. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant is an eligible higher degree student who satisfies cl.573.223(1A), or, if not, is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 12/037.

11. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a Bachelor’s degree, Master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. As the applicant applied for the visa before 1 July 2014, the relevant instrument specifying eligible education providers for this visa is IMMI 14/007.

12. In the present case, the applicant’s visa was cancelled on the basis the applicant did not continue to be a person who would satisfy either subclauses 573.231 or 573.223(1A).  As such it appeared that the applicant no longer satisfied the primary criteria for the grant of the visa and did not comply with condition 8516. 

13. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 11 April 2017. The decision record states that information before the Department from the Provider Registration and International Student Management System (PRISMS) indicated that between 17 June 2016 until after the NOICC was issued on 3 April 2017, the applicant was no longer enrolled in a Bachelor’s degree or Master’s course and was not enrolled in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A. 

14. The delegate’s decision noted that the applicant had not commenced higher education level course for which his visa was granted, a Master of Financial Analysis at UTS.  The delegate noted the applicant’s enrolment in this course was cancelled for non-commencement of studies on 17 June 2016.  The delegate recognised the applicant’s enrolment in a number of General English courses and vocational education courses.  The delegate found that, given his enrolment in his Masters course at UTS was cancelled, he was no longer an eligible higher degree student and was not enrolled in a course of study that was a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A.  Therefore, the delegate found, the applicant did not meet subclauses 573.231 or 573.223 (1A). 

15. The delegate furthermore found that by not commencing his higher education course and by enrolling at the Vocational Education Sector level, it indicated the applicant’s intention was not to study a Higher Education level course in Australia, as required by his visa.  The delegate noted that there was no evidence before him that the applicant had enrolment in a Higher Education course.  The delegate put a large amount of weight on that fact.  The delegate commented that the applicant had changed educational pathways which he stated demonstrated the applicant did not have an intention to study at the higher level.  The delegate also found that evidence before him indicated that the applicant only obtained enrolment in a Higher Education sector level course in order to maintain eligibility for the grant of the 573 visa and the evidence did not indicate to demonstrate an intention by the applicant to study at the higher degree level.  The delegate gave this factor significant weight. 

16. At the Tribunal hearing the applicant stated that as part of the English language requirements to study for his Master’s degree course he was required to enrol and successfully complete a range of English language courses.  After arriving in Australia he commenced a 15 week English language course at UTS on 30 May 2016.  He successfully completed the course on 9 September 2016 (T1, Folio. 58).  This course however, whilst run by the same university where he was enrolled for his Master’s, did not fulfil the higher English language requirements of his Master’s degree.  To meet the 6.5 IELT requirement for the Master’s he subsequently enrolled at Meadowbank TAFE which was completed on 4 February 2017 (T1, Folio. 57).  

17. The Tribunal noted that the applicant had obtained an acceptance to study a Master of Accounting at UTS.  The applicant stated he had received a scholarship from the Jordanian Government (T1, Folio. 56) as a result of his work as a school teacher.  The applicant stated his scholarship had conditions attached that included the studies be in Accounting specifically.  The applicant stated that between his acceptance and commencing his studies, UTS had discontinued the Master of Accounting and Finance course he had received an acceptance for and instead was offered by the education provider enrolment in a Master of Financial Analysis.  The Tribunal can confirm from its own investigations with the university that the Master of Accounting and Finance was in fact discontinued in December 2015 and the Master of Financial Analysis or Finance commenced in January 2016.

18. The applicant stated the new degree he was offered – a Master of Financial Analysis – did not meet the specific requirements for his scholarship.  He stated he sought a release from the course in order to seek enrolment in a Master’s degree that would meet the specific requirements of his scholarship.  The Tribunal notes the applicant was still enrolled in and completing the English language courses he was required to pass prior to commencing his Master’s degree at this time.  In response to the Tribunal’s questions the applicant said he sought a release from UTS and the Master of Financial Analysis course around October or November 2016.  The Tribunal notes the evidence that the applicant lodged an application to study a Master of Accounting course at Victoria University.  He was successful in obtaining conditional approval for the course on 29 November 2016 (T1, Folio. 53-55). 

19. The applicant stated he was mindful of the requirements to remain enrolled and he enrolled in a Certificate III in Business at Mercury Colleges Pty Ltd.  The applicant stated he studied the course for around three months in 2017. 

20. The applicant discussed his conditional offer from Victoria University to study a Master of Accounting course.  He stated the course was due to commence in March 2017.  He stated that he was precluded ultimately from commencing due to UTS failing to provide him with the appropriate release from his course until late March 2017.  The Tribunal notes the correspondence that the applicant’s release was finally approved on 29 March 2017 (T1, Folio. 55).  He stated that he was further challenged by the fact that Victoria University ultimately demanded a higher English language requirement than UTS for the Master of Accounting course which at that particular time he had not met.  The applicant stated he had by then met the English language requirements of UTS for their course but not Victoria University. 

21. The applicant had also during this period applied for the Master of Professional Accounting course at Torrens University.  On 5 April 2017 the applicant was made a formal offer by the University to enrol in the course which he accepted.  His studies commenced on 5 June 2017 (T1, Folio. 52-53).        

22. The Tribunal notes that the period between the 17 June 2016 and the issuance on 3 April 2017 the applicant was not enrolled in a Bachelor’s degree or Master’s degree course or a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A.  The Tribunal acknowledges that the applicant between May 2016 and February 2017 the applicant was enrolled in and successfully completing the General English courses he was required to do so in order to enrol in his principal course of study being the Master’s degree.   The Tribunal notes the applicant during this period was making what it considers were genuine efforts to secure enrolment in a Master of Accounting course of study that met the requirements of his scholarship from the Jordanian Government at both Victoria University and Torrens University.    

23. On the evidence the applicant was not enrolled in a course at the Higher Education Sector between after the cancellation of his Master of Financial Analysis enrolment at UTS on 17 June 2016 until his enrolment at Torrens University in a Master of Professional Accounting course in April 2017.  The applicant has not complied with condition 8516.  On the facts before the Tribunal he fails to meet cl.573.231. There is furthermore no evidence the applicant meets cl.573.223(1A).              

24. 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 the visa should be cancelled.

    Consideration of discretion

25. 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 (PAM3) ‘General visa cancellation powers’.

26. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia.

27. The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia.  The Tribunal is satisfied that the applicant has been in Australia for education purposes.  Since his arrival he has completed a range of English courses required as a prerequisite for his Master’s study.  He completed his English studies in February 2017, enrolled at Torrens University in April 2017, commenced his formal studies of his Master of Professional Accounting in June 2017 and in September 2019 completed his final examinations and assessments for the successful awarding of his degree (T1, Folio. 46-47).  The Tribunal disagrees with the delegate’s findings that his actions had indicated his intention was not to study at the Higher Education level.  The applicant’s efforts over the past two and half years – plus his previous studies in meeting the English language prerequisites for his Master’s at UTS and TAFE – satisfy the Tribunal that the purpose of the applicant’s travel to and stay in Australia was for study.  The applicant stated he has a desire to study a PhD in Accounting after his imminent graduation.  The Tribunal considers the applicant’s efforts to secure a suitable enrolment in a Master’s degree after UTS discontinued their Master of Accounting and Finance degree followed by his subsequent successful studies indicate his purpose of travel for Australia was to study.  Based upon the evidence before it the Tribunal finds the applicant was fulfilling the purpose of his travel to and stay in Australia as the holder of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa.   On the evidence before concerning the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor against cancelling the visa.

28. The Tribunal has considered the extent of the applicant’s compliance with visa conditions.  The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with condition 8516 of his visa for a period of time by not being enrolled at a Higher Education Sector level for a period of time to be a situation of unfortunate circumstance and bureaucracy and gives it little negative weight.  There is no evidence before the Tribunal that the applicant has been non-compliant with any other visa conditions.  On the evidence before it the Tribunal weighs this factor against cancelling the visa.

29. The Tribunal has considered the degree of hardship that may be caused to the applicant or his family members should his student visa be cancelled. 

30. In relation to hardship caused to himself, the applicant stated at the hearing that he would be upset leaving his friends behind at this point of his life where he was just completing some significant higher education studies.  He said that he was motivated to now study a PhD in Accounting.  The Tribunal recognises that the applicant did not comply with condition 8516 for a period of time but considers the non-compliance was ultimately inadvertent by the applicant and a result of attempting to navigate the maze of university administration and bureaucracy rather than an intentional attempt to utilise a Higher Education sector visa for other purposes.  The Tribunal considers the subsequent evidence and his academic record suggests he was in fact a motivated and diligent Higher Education sector level student.  The Tribunal furthermore notes the applicant has completed his studies whilst also going through a divorce that was finalised in December 2018.  The applicant did not provide the Tribunal with any evidence pertaining to hardship that might be suffered by his family so gives it no weight.  The Tribunal on the evidence before it considers the applicant personally would face a degree of hardship if his visa were to be cancelled.  He has completed his Master of Professional Accounting studies and would be precluded from commencing a PhD as he has flagged.  Whilst the Tribunal notes it would be entirely open to the applicant to pursue studies off-shore, the Tribunal considers the cancellation of his visa is a harsh price for the applicant to pay for earlier problems which pertain more to administrative issues. 

31. The Tribunal notes furthermore in relation to hardship that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia. He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia. The Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date. The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged. On the evidence before it concerning the degree of hardship, the Tribunal weighs this factor against cancelling the visa.

32. The Tribunal has considered the circumstances in which the ground for cancellation arose.  The Tribunal notes that the grounds for cancellation arose when the applicant failed to maintain his eligibility for his visa by maintaining his enrolment in a registered course of study commensurate with the 573 higher education visa he had been granted and failed, in the delegate’s opinion, to rectify his enrolment status in an adequate time.  As discussed earlier in its decision record, the Tribunal considers the ground for cancellation arose due to the conflation of a range of unfortunate circumstances in relation to timing and the vagaries of administration and bureaucracy.  The applicant failed to maintain his enrolment in a Higher Education sector course of study for the period the delegate has identified.  The Tribunal however on the evidence before it accepts the applicant’s explanation for this situation and considers the evidence before it of the applicant’s actions mitigates the breach.  The applicant was studying the English language courses required – and indeed flagged in his application for his Student visa – for the majority of the period he was not enrolled in a Higher Education course of study.  Those courses were furthermore pre-requisites if he were to be permitted to enrol and commence his Master of Accounting studies.  Whilst the Tribunal notes it is a Vocational Education level course, the applicant nevertheless enrolled and studied for three months in a Certificate IV course in Business whilst he was attempting to deal with the enrolment issues pertaining to his Masters.  The applicant was attempting to secure enrolment at Victoria University many months prior to receiving his NOICC and in fact secured a conditional offer in a Master of Accounting by November 2016, five months prior to receiving the notification from the Department.  Given he could not meet the March 2017 commencement date in the course due to his inability to secure release documentation from UTS and due to Victoria University’s requirement for English language qualifications higher than those at UTS, he sought enrolment elsewhere in a Master of Accounting course that met the requirements of his Jordanian Government scholarship. The applicant was able to finally secure enrolment about the same time as he received his NOICC and commenced studies two months later.  For the two and a half years since this time he has worked diligently at completing his Master’s degree and has successfully done so, qualifying for a Master of Professional Accounting that the applicant hopes can lead to doctorate studies in Accounting.

1. The Tribunal accepts the applicant’s submission that the decision to discontinue the Master of Accounting and Finance at UTS he originally wished to study – and its adverse impact on his scholarship which demanded a specific accounting qualification – led the applicant to depart the campus and seek a Master’s that would meet the requirement of his scholarship elsewhere.  The delay in securing a withdrawal from his university certainly impacted upon his ability to secure a timely new enrolment at an alternative higher education provider that offered a course that met the requirements of his scholarship and his visa.  The applicant’s preparedness to complete his English studies that would allow him to undertake the Master’s course; his considerable documented efforts in securing a new enrolment combined with his successful completion of his Master’s course in Accounting ultimately suggest to the Tribunal that the applicant had the genuine intention of studying at the higher education level and the ground for the cancellation of his Student visa arose from an unfortunate set of administrative circumstances.          

2. Given the applicant was a direct party to his enrolment; the Tribunal is of the opinion that it is his responsibility to be aware and comply with the conditions of his visa whilst studying and living in Australia.  This includes being aware of any conditions such as condition 8516 which required that the applicant continue to satisfy the primary criteria that permitted the grant of the visa including that he maintain enrolment at the Higher Education Sector level.  Given the applicant was a direct party to his enrolment; the Tribunal is of the opinion that on the evidence he would have been aware that he had ceased enrolment with a registered education provider.  The Tribunal furthermore notes that visa holders are expected to be mindful of the requirements of their visa and to inform the Department of any changes to their status.  Nevertheless on the specific circumstances in this review, the Tribunal accepts the applicant’s evidence that he took considerable efforts to comply with the conditions of his visa over a significant period of time and furthermore exhibited a strong motivation to regularise his enrolment situation.  The Tribunal considers the evidence of his completed General English studies as well as more importantly his Master of Professional Accounting at the time of decision is indicative of a cancellation that was grounded more in academic administrative issues rather than a lack of desire by the applicant to comply with the conditions of his visa.  On the evidence before it concerning the ground for which the cancellation arose, the Tribunal weighs this factor against cancelling the visa.

3. The Tribunal has considered the past and present behaviour of the applicant towards the Department.    There is no evidence before the Tribunal concerning the applicant’s previous and present behaviour towards the Department. On the evidence before it the Tribunal weighs this factor against cancelling the visa. 

4. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. On the evidence before it the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders. The applicant in oral evidence confirmed this. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

5. The Tribunal has considered whether there are 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 of the applicant’s visa.  The applicant stated he does not have any children or partner. There is no information before the Tribunal which indicates that ant cancellation would result in any breach of Australia’s international obligations.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

6. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

   DECISION

7. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa..

   Justin Owen
   Senior Member