Aburumman (Migration)

[2022] AATA 240

Aburumman (Migration) [2022] AATA 240 (1 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yazan Aburumman

CASE NUMBER:  2016733

HOME AFFAIRS REFERENCE(S):          BCC2020/2489405

MEMBER:Brendan Darcy

DATE:1 February 2022

PLACE OF DECISION:  Melbourne

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 01 February 2022 at 2:45pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – family financial hardship – applicant awaiting court proceedings – applicant’s partner pregnant – genuine student – separation from Australian family – best interests of the child – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; Schedule 8, Condition 8202

CASES

Wan v MIMA (2001) 107 FCR 133    

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 November 2020 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).

2. The delegate cancelled the visa on the basis that a condition imposed on the applicant as a holder of a student visa, namely condition 8202, had been breached: section 116(1)(b). 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. Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 31 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Sussan Barjawe, the applicant’s spouse, who is an Australian citizen.

4. 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

5. 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)(b) of the Act, the visa may be cancelled.

   Did the applicant comply with condition 8202?

6. 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).

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

8. By way of background, the applicant is a male national of the Kingdom of Jordan (Jordan) and was born in the Kingdom of Saudi Arabia on 6 May 1987.

9. The applicant had completed a master’s degree in marketing at a university in Pakistan in 2010. He subsequently worked in Jordan and Qatar as a sales representative and as a sales manager.

10. The applicant first arrived in Australia on 18 March 2017 while holding a Class TA Subclass 600 visitor visa. The applicant’s visa expired on 18 June 2017, but the applicant had been granted a bridging visa on 11 May 2017 while an application for a student visa was assessed. (The student visa application was refused on the basis the applicant did not satisfy the Genuine Temporary Entrant (or GTE) test. The applicant had been enrolled in a Certificate III and IV in Commercial Cookery.)

11. The applicant departed on 19 August 2017 and then returned on 18 March 2018 after being granted a further Subclass 600 visa.

12. On 11 June 2018, the applicant was then granted a Class TU Subclass 500 visa. The student visa was set to expire on 15 March 2021. The applicant had been enrolled in an English language capacity course (which he completed in February 2019) and a Master of Global Project Management at Torrens University Australia Limited.

13. On 14 October 2020, the Department validly issued a Notice of Intention to Consider Cancellation (NOICC). It specified that the Department accessed the applicant’s Provider Registration and International Student Management System (PRISMS) record. (PRISMS records provide the details of the Confirmation of Enrolment (CoE) and study records of international students registered to study in Australia.)

14. There is no evidence the applicant sought a deferral of studies, departed Australia, or engaged with the education provider’s support or appeals processes. PRISMS indicates he voluntarily requested withdrawal from his enrolment in a master’s degree.

15. The applicant’s PRISMS record indicated the then student visa holder has not been enrolled in a registered course since 21 August 2019, and that there appears to be grounds for cancelling the student visa under s.116(1)(b) of the Act because he has not complied with condition 8202.

16. On 15 October 2020, the applicant responded to the NOICC by email. The emailed response states, in full:

    Dear All

    “The notice of intention to cancel my student visa require me to provide comments in response to the reasons for cancellation of visa.

    I want to start with thanking you for the approval for the first time of cancellation, and i would like to ask you for more of your kindness as well for this one. For these reasons.

    First of all, the ground of me not studying is fault. I wanted to apply for a course. However, for the reason that my ex partner had me accused with domestic violence, I had to hire a lawyer which cost me a lot of money. I also applied for a partner visa which it was costly and she cancelled it. So i had a financial issues. (I have been proven innocent).

    Secondly, My ex partner had our first child and I have not got the chance to see him yet,so i am fighting this on family court which will take a bit of time but also consuming my financial resources. Where i could not apply for the course that i wanted. And I believe it is important for the child sake to have his both parents with him to raise him in the way it should be, also to have the support that he needs.

    I am seeking your kindness to push the time for me which is not much so at least i can get the chance to start the court where it is in the serving stage, and be involve with my child, also to save some money and apply for another visa to pursue my goal in Australia. 

    I am an educated person and I continue to earn honourable livelihood. I have a new born Australian child who needs me to be part of his life and I request that I am given the chance to be part of his life. I am eagerly waited for the apprehended Violence order be lifted so that I can see my child and be involved in his development. And now that the violence order is gone, and soon the family court will let me see my child, will be in peace and focus on my goals.

    Thanks again and have a good day

    Yazan aburumman 

17. There were no attachments to the response to the NOICC or further submissions provided.

18. Based on this response, a delegate - acting on behalf of the Minister, proceeded to make a finding that the applicant appeared to agree there are grounds for cancellation as in his response to the NOICC. (The applicant indicated there were extenuating circumstances for his non-compliance with condition 8202(2)).

19. On 10 November 2020, the delegate notified the applicant that his student visa had been cancelled.

20. On 17 November 2020, the applicant validly applied to have the delegate’s cancellation decision reviewed by the Tribunal. The notification letter and cancellation decision were attached to the application for review. Also attached was a copy of a birth certificate issued by the relevant authority in the State of South Australia indicating the applicant was the biological father of Daniel Hosam Alahmar, born on 1 January 2020.

21. On 20 January 2022, the applicant provided a submission to the Tribunal that included a marriage certificate that he was married to Ms Barjawe on 2 October 2021; medical evidence that Ms Barjawe was pregnant and a family order from the Federal Circuit of Court of Australia stating that the applicant’s older child is to live with his mother with the father gaining limited and supervised access.

22. No evidence of the applicant being enrolled in further studies of any kind has been provided.

23. At the scheduled hearing, the applicant admitted that he had not complied with condition 8202(2)(a) as outlined in the NOICC.

24. The evidence before the Tribunal is that the applicant had not been enrolled in a registered course of study between 21 August 2019 and the date of cancellation – about fourteen (14) months, which is a substantial period of time.

25. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course between August 2019 and the date of cancellation on 10 November 2020.

26. Accordingly, the applicant has not complied with condition 8202(2)(a). Therefore, the grounds for cancellation in s.116(1)(b) arise.

    Consideration of the discretion to cancel the visa

27. 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 to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

28. The purpose of student visas is to remain in Australia on a temporary basis to study on a full-time basis and to achieve an educational qualification in Australia.

29. The visa history of the applicant indicated that he arrived in Australia on a temporary visitor visa but unsuccessfully applied for a student visa in 2017 and had subsequently departed Australia. He returned to Australia on another temporary visitor visa whereby he successfully applied for and was granted a student visa. The applicant’s visitor visas were granted because his who had migrated to Australia (The applicant has two other brothers and no sisters).

30. The applicant claimed he initially enrolled in commercial cookery as it was his genuine interest or passion. (The Tribunal notes the applicant currently works as a chef in a restaurant.) After the refusal decision, the applicant decided that he would advance his marketing expertise by enrolling in a degree related to marketing. He stated the master’s degree was considerably more digital and contemporary than the one he completed over a decade ago in Pakistan. The applicant claimed he was academically progressing until he and his then spouse were forming a family.

31. As mentioned above, the applicant voluntarily withdrew his enrolment in a master’s degree at Torrens University Australia Limited in August 2019, leading to his non-compliance with condition 8202(2).

32. According to the decision record, the applicant lodged an application for a Partner Combined (Subclass 820/801) visa on 27 June 2019. He and his former partner married on 12 July 2019. The applicant claimed the name of the sponsor was Haya Alahmar, who was born in the Arab Republic of Syria. A submitted birth certificate indicated the applicant, and the sponsor had a child about six months after the visa application was lodged.

33. (With regard to the applicant’s partner visa application, on 7 February 2020, the applicant applied to have the Department’s decision to refuse him a Class UK Subclass 820 visa reviewed by the Tribunal. The refusal decision was dated 10 January 2020. The decision states that on 12 December 2019, the Department was informed the spousal relationship between the applicant and the sponsoring partner had ended. The review application or AAT number is 2002342. On 26 March 2020, the Tribunal determined that it did not have jurisdiction in the matter because the application had not been validly lodged within 21 days after the applicant was notified in accordance with statutory requirements.)

34. The Tribunal enquired whether his visa history invited reasonable concerns or suspicions that the applicant travelled to Australia on temporary visas only to seek out a pathway to permanent residency and not because he was committed to full-time studies. The applicant responded that if that was the case, he would not have departed Australia in an orderly manner in 2017. The applicant did not deny he found Australia a suitably well-organised place where he could build a new life, but he had genuinely wanted to complete his studies. (The extenuating circumstances leading to his non-compliance are discussed below.)

35. The applicant is obviously looking to build a long-term life outside of his home country. He provided oral evidence that his parents encouraged him and his brothers to seek out opportunities outside of their country of nationality and to remit income back to them.

36. However, the Tribunal has formed a view that the applicant is a well-educated and articulate person who has a strong English language capacity. There is sufficient evidence for the Tribunal to accept the applicant’s intention and ability to complete a master’s degree or that his intention is to garner a qualification to achieve economic advancement. Based on the available information, the Tribunal is satisfied that the applicant’s purpose of travelling to Australia is to study on a full-time basis and places notable weight on this finding in favour of not cancelling the visa.

    degree of compliance with any conditions subject to which the visa had been granted

37. Other than evidence that the applicant has not complied with condition 8202(2), there is no further evidence of non-compliance in relation to this visa or the earlier visitor visas the applicant has held since his first arrival. The Tribunal accordingly places some weight on the applicant’s overall compliance with other visa conditions in favour of the visa not remaining cancelled.

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

38. During the hearing, the applicant emphasised his fears of the great emotional hardship arising from him being significantly physically separated from his child arising from his first marriage and from his wife and other (in utero) child, if the visa remains cancelled. The applicant outlined that he had limited custody of his older child and that he was required to pay child support payments. The applicant, if he returned to the Middle East, would be significantly disadvantaged in being able to pay such payments to his older child, let alone, two children and help support his parents. The Tribunal also received oral evidence from the witness that she would be emotionally and financially disadvantaged by the applicant’s departure from Australia, but she stated she would not travel back to Jordan and their relationship would likely end in divorce. The applicant also claimed that finding work in Jordan or anywhere in the Middle East would be onerous given the impact of the Covid-19 pandemic on local employment labour markets. (The applicant did not claim to suffer from mental or physical health problems.)

39. The Tribunal accepts the applicant is genuinely committed to the nurturing and wellbeing of his children and there would be distress on his marriage between him and his current wife. It finds that the degree of emotional, psychological and financial hardship to be faced by the applicant, should this visa continue to be cancelled, will be significant.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. 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

40. At the hearing, the applicant explained that his marriage to his first wife was a genuine relationship that was stressed by several factors. Firstly, there were pressures on him to work full time which clashed with his obligations to pay tuition fees and work only on a part-time basis as required by another condition of his student visa. Secondly, there were expectations that the applicant, along with his other siblings, would forward remittance back to their parents and that he felt this familial obligation keenly. Thirdly, the applicant had admitted to borrowing monies from his siblings and friends to help him apply for visas. And fourthly, he had entered into a relationship which involved the expectation of suitable accommodation for them his wife’s family while he was pursing of a partner visa. The non-compliance occurred soon after his lodgement of a combined partner visa application. The applicant mentioned the visa application charges, the tuition fees and related expenses contributed to his indebtedness to family and friends, then amounting to as much as $40,000 (an amount he claimed had paid down).

41. (The Tribunal notes that the applicant in his written response to the NOICC mentioned he was the subject of an apprehended violence order and this was an extenuating circumstance. However, the order is dated 11 December 2019. He similarly claimed that legal costs to gain access to his child through litigation was an extenuating circumstance. However, the applicant’s non-compliance in August 2019 predates the issuing of an apprehended violence order by around four months and subsequent legal costs. The Tribunal does not accept these to be extenuating circumstances leading to the grounds for cancellation.)

42. The Tribunal accepts that at the time leading up to the applicant’s non-compliance with condition 8202 he had been living with a great deal of emotional turmoil and financial stress. He admitted that he felt compelled to voluntarily withdraw his enrolment – and thereby breaching a visa condition - in favour of working full time because he would not be partial work condition on his student visa as he was not studying at the time. As discussed, it was indeed open to him to defer his studies. He did not seek any guidance from his education provider about his options as an international student visa holder. With this in mind, the Tribunal accepts that the applicant had extenuating circumstances at the time of non-compliance in August 2019, but those circumstances were not beyond his control.

    past and present behaviour of the visa holder towards the Department

43. There is no evidence that the applicant has been uncooperative towards the Department. He responded to the NOICC in a timely manner. The Tribunal places some weight on this behaviour in favour of the visa not remaining cancelled.

    whether there would be consequential cancellations under s.140

44. The applicant claims to have a dependent two-year-old child and another child due to be delivered later this year. The children are or are about to be Australian citizen children. There is no evidence that the applicant has any dependents who would be adversely and consequently affected based on this student visa remaining cancelled. Accordingly, the Tribunal places no weight either in favour of or against the visa being reinstated.

    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

1. Should this visa under review remain cancelled, the applicant may become an unlawful non-citizen. He will have very few migration options to remain lawfully in Australia. He will also be s 48 barred from applying for a range of onshore visas, including a partner visa sponsored by his new spouse (the witness) because he has already been refused such an application. What available options there are have no guarantees of success. As an unlawful non-citizen, the applicant may be liable for detention under s.189 and removal from Australia under s.198 of the Act. The applicant may avoid immigration detention by voluntarily departing Australia. It is highly unlikely the applicant would be detained indefinitely. The applicant may further be subject to Public Interest Criterion 4013 which can result in a three-year exclusion from having any new application for most temporary visas approved. The Tribunal gives these considerations of the mandatory legal consequences and the applicant’s limited migration options some weight against the applicant’s student visa remaining cancelled.

   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 (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133 at [27]–[28].)

2. The applicant, a citizen of Jordan, has not previously applied for protection.

   the risk of non-refoulement obligations

3. Australia’s obligations in relation to non-refoulement include triggering its international obligations under the Refugees Convention and the Refugees Protocol, the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR). Given the applicant did not advance any claims to fear persecution by anyone in authority in Jordan or from any non-state actors in his home country, the Tribunal assesses the removal of the applicant would not breach Australia’s non-refoulement obligations. Furthermore, it remains open to him to do so.

4. The Tribunal finds that the cancellation of this visa will not potentially lead to him being removed in breach of Australia’s non-refoulement obligations under the Refugees Convention and the Refugees Protocol, or in breach of Australia’s obligations under the CAT or ICCPR. In this regard, the Tribunal places little weight in favour of the visa being reinstated

   best interest of the child

5. The delegate considered whether Australia would be in breach of its obligations under the Convention on the Rights of the Child (CRC) and the ICCPR if this visa remained cancelled. The delegate correctly pointed out that the best interests of the child refer to children under the age of 18 and to children within Australia’s territory or jurisdiction.

6. While the applicant has visitation rights to his biological child currently living with his ex-partner in the State of Victoria, the applicant does not have full or majority custody of the child. The Tribunal accepts the cancellation of this visa, whereby the applicant is offshore, will adversely impact on the child and that there is no prospect of the child following him to Jordan or anywhere outside of Australia. Similarly, the Tribunal received evidence that the applicant’s current spouse, and her child would not leave Australia to follow the applicant offshore, should the visa remain cancelled.

7. Should the visa be cancelled, and if the applicant is required to depart Australia, the decision as to where he and his family live is a decision for the children’s respective parents to make. Whether or not the family unit is preserved is a choice to be made by the family, not the Department. The Tribunal does not accept the cancelling of this visa under review would potentially result in a breach of Australia’s obligations under the CRC or any other international treaty or protocol to which Australia is a signatory.

8. Nonetheless, the Tribunal accepts that the better interests of the applicant’s children will be served by their biological father playing active and constructive roles in their lives by having this visa reinstated. As the Australian courts have repeatedly issued, the interests of children in migration matters should be of primary concern for decision makers, and the Tribunal places considerable weight on these pedagogical considerations in favour of the applicant’s visa not remaining cancelled.

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

9. This consideration is not relevant to a cancellation of a temporary student visa.

   any other relevant matters.

10. Overall, the Tribunal found the applicant to be of good character. The applicant stated the apprehended violence order against him had never been breached and it was eventually dropped by the Department of Public Prosecutions in South Australia. There is no evidence, including evidence, including information subject to a non-disclosure certificate, that the applicant had breached any serious laws of Australia, by way of charges or arrests or convictions. Neither is there any evidence that he had been convicted of any other laws in the various countries in which he had spent notable amounts of time prior to his migration to Australia. He is subject to a Family Court order to materially support his biological child and there is no evidence he is not compliant in this regard. Based on these aspects reflecting on the applicant’s character, the Tribunal places some weight on this consideration in favour of the visa being reinstated.

    Conclusion

11. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

12. In this matter, the Tribunal finds the applicant did have extenuating circumstances at the time the ground for cancellation arose, namely not maintaining enrolment in a full-time course of study as required by condition 8202. They were circumstances that involved accumulated debt, familial obligations, the challenges of a new marriage and the stress these cumulatively placed on his financial capacity to remain enrolled. These circumstances were not necessarily beyond the applicant’s control.

13. The Tribunal does not discern any great mischief or malice behind the applicant’s non-compliance with condition 8202. The applicant felt an understandable urgency to apply for a partner visa and to work full time as he was at the early stages of forming a family and preparing for its future. The Tribunal also acknowledges the applicant has a biological child from whom he would be physically separated by international borders, if the visa remained cancelled. The applicant has remarried and his new spouse who is with child. In this matter, the Tribunal has placed particular emphasis on the better interests of the applicant’s children being served by the applicant remaining as a student visa holder, compared to his challenges to remain in Australia arising from this visa’s ongoing cancellation. The Tribunal further accepts, on balance, that the applicant has been determined to re-engage with his studies for the betterment of his career goals and his family. In summary, the Tribunal finds there are more factors in favour of having his visa reinstated than in those countervailing factors in favour of cancelling the visa at the time of making this decision.

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

    DECISION

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Brendan Darcy
    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.