Al Hamdo (Migration)

Al Hamdo (Migration) [2019] AATA 5014 (13 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Khaled Al Hamdo
CASE NUMBER:  1837604
HOME AFFAIRS REFERENCE(S):           BCC2018/4264805
MEMBER:Michael Biviano
DATE:13 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 13 November 2019 at 3:36pm
CATCHWORDS
MIGRATION – cancellation – Higher Education Sector (Class TU) visa – Subclass 573 (Student) (Temporary) – non-enrolment in registered course – college lost accreditation for intended course – delay in enrolling for alternative course – long delay in applying for replacement for expired passport – depression – factors for and against cancellation – decision under review affirmed
LEGISLATION
Migration Act 1959 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 20 December 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass TU 573 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study from 9 August 2017 and he was not compliant with condition 8202 of his visa. The delegate went on to consider whether the factors in favour of cancellation outweighed those against cancellation. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 4 November 2019 to give evidence and present arguments.
The applicant was represented in relation to the review.
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
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.
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a 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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The Decision Record of the Department of Home Affairs dated 30 November 2018, which was provided to the Tribunal by the applicant confirms that the Department cancelled the applicant’s Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa which was granted on 4 August 2014 and the reasons for the cancellation of the visa (Decision Record).
Prior to the hearing the applicant submitted to the Tribunal a statement signed by him dated 28 October 2019 together with supporting documents including:-
a.Undated medical certificate for the applicant prepared by Dr Masum Ahmed;
b.Diploma of Business for the applicant from Australian Global College dated 22 February 2018 with statement of competency;
c.Confirmation of Enrolment (CoE) for the applicant in the Advanced Diploma of Leadership & Management at Future Academy Pty Ltd created 3 December 2018;
d.Letter of Offer from Future Academy Pty Ltd dated 10 August 2018;
e.Receipt statement from the Consulate General of Lebanon, Sydney dated 28 November 2018;
f.Enrolment agreement with Mercury Colleges dated 12 July 2019 including confirmation of agreement and payment dated 3 September 2019 signed by the applicant; and
g.CoE for the Advanced Diploma of Leadership & Management at Mercury Colleges Pty Ltd created 3 September 2019 for the applicant to study from 12 August 2019 until 9 August 2020.
Further at the hearing the applicant also provided an email from the Future Academy dated 15 January 2019 confirming that the CoE issued by that Department had been cancelled.
The applicant arrived in Australia in March 2014. He claimed that pursuant to his student visa he was initially enrolled in a Bachelor of Engineering in software and networking which he was intending to study with an English course at MEGA Institute and Canberra University. However he then changed his evidence that he had originally been enrolled in a package of courses including an English course for 30 weeks, a Certificate IV of Business which was to take six months to complete, a Diploma of Business which was to take six months to complete, an Advanced Diploma of Business which was also to take six months to complete with a final Bachelor’s degree that would take a year for completion. All the courses were to be business courses.
The applicant gave evidence that he completed a 30 week English course at MEGA Institute and then commenced and completed a Certificate IV in Accounting at MEGA Institute. He then gave evidence that he was unable to continue with studies for the purposes of getting a Bachelor’s degree in Business as the MEGA Institute had lost its arrangements with Canberra University which enabled students that had completed the certificate and diploma courses to continue studies at Canberra University in the Bachelor’s degree.
The applicant then gave evidence that he transferred his studies after completing the Certificate IV in Accounting to study a Diploma of Business at Australian Global College (AGC) which he completed on 14 February 2018.
The applicant gave evidence that he was unable to advance and study the Advanced Diploma of Business at AGC as the education provider did not have CRICOS accreditation for an Advanced Diploma course.
The applicant gave evidence that between February 2018 and March 2018 he was awaiting correspondence from the College in relation to enrolment of the Advanced Diploma course. He claims that he received an email confirming that AGC would not be holding or teaching the Advanced Diploma course and the reasons set out for that. He claims that it was because AGC lost its CRICOS accreditation for the Advanced Diploma of Business. The applicant did not submit that email into evidence. He claimed that at that point he decided he would need to find somewhere else to study. He called his agent Akrem to commence the paperwork to make an application to study an Advanced Diploma at another education provider.
He claimed that a friend had told him about the Future Academy being a good school that provided courses at the Advanced Diploma level that he could study. He gave evidence that in or about April 2018 he made an application to the Future Academy to study the Advanced Diploma of Leadership & Management. He claims that application had been submitted in April 2018 and the college was very slow in responding to his application. He stated that he called the college to check if his application was satisfactory and he claims that they raised the issue that his passport was about to expire and that he would need to apply for a new passport before they accepted his application.
The applicant gave evidence initially that he had applied for his passport on 28 March 2018. However he claimed that there was a misunderstanding and changed his evidence after referring to a receipt for a passport application from the Lebanese Consulate Office which confirms that the passport application was made on 28 November 2018. The applicant did not proffer an explanation for the delay in applying for the new passport.
The applicant gave evidence that the passport renewal application had taken a week to file and then it would take between one and three months for the passport to be available for collection. After the Tribunal had asked the applicant a number of questions about his passport, the applicant conceded that his passport had in fact expired on 7 February 2018 and he had remained in Australia without a passport.
The applicant applied for and obtained a letter of offer to study the Advanced Diploma of Leadership & Management at the Future Academy and the course was to commence in Term 1 from 14 October 2019 to 20 December 2019. The applicant had claimed that he did not enrol in the first semester because he was unwell because of health issues relating to stress and depression and further claimed that his expired passport had caused the Future Academy not to allow him to commence his enrolment. No documentation was provided supporting those claims.
The applicant obtained a CoE for the Advanced Diploma of Leadership & Management at the Future Academy on 3 December 2018 to commence studies on 14 January 2019 and for the course to conclude on 11 July 2020.
On 30 November 2018, the Department provided the applicant with a Notice of Intention to Consider Cancellation of the visa (NOICC) because he had not been enrolled since

7 February 2018 which at the time of the Notice was nine months and 21 days.
The applicant filed a response by way of email with the Department in response to the NOICC and provided documents in support of his response (Response). The Response stated:-
Thanks a lot for your email, and sorry about the delay i was waiting on the college to update my COE, i actually already commenced my studies and did have a gap after AGC, i am currently in Future Academy Australia, and on completion, will be attending Bachelors of Business in Macleay College.
Attached is my offer for Future Academy and the revised COE from the college. Please do let me know if there are any further documentations that you need from my side.
The Response provided by the applicant on 5 December 2018 did not dispute that there had been a substantial gap in his studies.
On 3 December 2018, after receiving the NOICC, the applicant obtained the CoE for the Advanced Diploma of Leadership & Management at Future Academy Pty Ltd. The applicant claimed by the time he had received the CoE he had obtained his passport, however based on the evidence provided and that the application had only been merely filed on 28 November 2018, the Tribunal finds that at the time that the CoE was issued the applicant would not have received his new passport and he would have continued to have had an expired passport.
The applicant conceded in evidence, that he was not enrolled in a registered course of study from 7 February 2018 until 3 December 2018 which is nearly 10 months.
Accordingly on the evidence before the Tribunal, it finds that the applicant was not enrolled in a registered course between 7 February 2018 and 3 December 2018. Accordingly the applicant has not complied with Condition 8202(2) of his visa. As this was a condition which was attached to his visa, the applicant therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b) of the Act.
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘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 or to remain in Australia
The applicant gave evidence that he came to Australia to study and undertake a suite of courses as discussed above. The applicant decided to change his course of study from accounting, to business, to leadership and management courses.
Notwithstanding that the applicant has been in Australia since March 2014 which is a period of more than five-and-a-half years, he has only completed English courses, a Certificate IV in Accounting and a Diploma of Business and he has only recently commenced studying an Advanced Diploma in Leadership & Management which he commenced studying in August 2019. His record suggests he came to Australia to study.
The applicant has through his evidence, the Response and the documents tendered to the Tribunal essentially claimed that his non-enrolment on 7 February 2018 arose due to a number of circumstances including:-
(a)the loss of CRICOS accreditation by AGC for the Advanced Diploma of Business;
(b) his expired passport;
(c)his inability to get enrolled in the Advanced Diploma of Leadership & Management during the course of 2018 despite attempts to do so;
(d)his poor mental state and depression as set out in the medical certificate given by Dr Masum Ahmed.
The difficulty with the applicant’s claims is that many of the grounds stated for non-enrolment do not appear to be borne out by the evidence or they relate to matters that are the responsibility of the applicant. The applicant was not enrolled for a period of nearly 10 months which is a long period of time. The grounds provided by the applicant explain why he was not enrolled for only part of those 10 months.
As to the grounds raised by the applicant, the Tribunal finds as follows:-
a.the Tribunal accepts that AGC had lost its CRICOS accreditation for the Advanced Diploma of Business, which was the course that the applicant was intending to study. The loss of accreditation provides the applicant with a reasonable explanation for not being enrolled for a short period of time of two to three months during which time the applicant had ample opportunity to re-enrol in another course provided by another institution;
b.the Tribunal finds that matters pertaining to the applicant’s passport having been expired are the responsibility of the applicant and no other person. The applicant should have known that his passport had expired and that it would be a relevant issue for an education provider in considering any application for enrolment. Extraordinarily there was no explanation proffered why it took the applicant nearly nine months from when his passport expired to when the application was made on 28 November 2018. Accordingly the Tribunal does not accept this reason as being a reason beyond the control of the applicant;
c.
the applicant was able to receive a letter of offer from Future Academy dated

10 August 2018 to enrol in an Advanced Diploma of Leadership & Management and whilst the applicant claimed that the College refused to enable him to be enrolled by reason that he did not have a passport, no correspondence was submitted corroborating such evidence. Further no explanation was given why it took him so long to enrol. Further it would appear that Future Academy Pty Ltd was prepared to allow him to be enrolled on 3 December 2019 in circumstances where a new passport had not been issued and he had merely made an application with the Lebanese Consulate in Sydney. Accordingly the Tribunal does not accept the applicant’s explanation as to why he could not get enrolled until December 2018;
d.the applicant has given evidence about his medical condition and he tendered a medical certificate. The applicant claimed his depression arose due to his difficult circumstances in Australia, his struggles in undertaking studies in Australia, and his fear of disappointing his parents. The medical certificate is extremely general and somewhat inconclusive and is not dated. The certificate provides that the applicant has been seeing the medical practitioner on and off with some medical health issues including depression, anxiety and stress since the beginning of 2017 but it flared up late in 2018 again around August 2018. The certificate states that at that time he was going through a very stressful time and that he could not focus on his studies at all. It says that the applicant is currently getting better. The Tribunal notes that firstly the applicant notwithstanding suffering depression and anxiety was able to complete his Diploma of Business notwithstanding his condition and that the flare up of his condition occurred in August 2018, six months after his enrolment has ceased in February 2018. Further the medical certificate does not state that the applicant’s medical condition was such that firstly he could not enrol in a course of study and defer his studies or alternatively that his condition was so severe that he would be unable to study. Merely the certificate makes a plea to consider his application from studies based on compassionate grounds. The Tribunal does not find that the applicant’s medical state and psychological condition contributed to the applicant not being enrolled in a registered course of study.
In the circumstances the Tribunal finds that the period of non-enrolment which was nearly 10 months is substantial and creates some doubt as to whether the applicant travelled and stayed in Australia for the purposes of study. Whilst a small part of the period of non-enrolment can be explained due to matters beyond the applicant’s control in relation to AGC losing CRICOS accreditation for the Advanced Diploma course, the remaining reasons and grounds are matters that were the responsibility of the applicant.
The applicant sought to enrol in an Advanced Diploma of Leadership and Management at the Future Academy immediately prior to the cancellation and has since the cancellation enrolled in an Advanced Diploma of Leadership & Management at Mercury College and he has given evidence that after the completion of the Advanced Diploma he wants to undertake and complete a Bachelor’s degree in business.
Having regard to the applicant’s evidence the Tribunal accepts that the applicant came to Australia for the purposes of study and that he has undertaken significant studies whilst in Australia and that he does intend studying in Australia in the future. However given his conduct in Australia as set out above in being not enrolled in a course of study for a period of 10 months which is a long period of time, notwithstanding his reasons, the Tribunal gives this matter only some weight towards the visa not being cancelled.
The extent of compliance with visa conditions
As discussed above the applicant gave evidence that he was not enrolled in a course of study for a period of nearly 10 months which is a long period of time. Therefore the applicant has not complied with Condition 8202(2) for a long period of time and such non-compliance with that Condition for such period may weigh towards cancelling the visa, unless the Tribunal accepts his reasons for non-enrolment or finds that he was not responsible for the non-enrolment.
As set out above, the applicant has claimed there are reasons as to why he was not enrolled and whilst the Tribunal accepts that for a short period of time of the non-enrolment that the non-enrolment was for matters beyond his control in that AGC had lost CRICOS accreditation for the Advanced Diploma of Business, which would have caused him to seek other courses and enrol in another course, which he should have been able to reasonably undertake within two to three months, the Tribunal does not accept that it would have required the applicant a period of 10 months to re-enrol.
The applicant has raised other reasons for the period of non-enrolment including his medical condition which as discussed above the Tribunal does not accept as a reason for not being enrolled based on the evidence provided to the Tribunal.

Further the applicant has raised other reasons for not being enrolled including that his passport had expired and that the education providers would not allow him to be re-enrolled without first obtaining a new passport. As discussed above the evidence that has been supplied is inconsistent with those reasons and no explanation was given why he allowed his passport to expire and why it took him so long to re-enrol. It is the responsibility of the applicant to maintain a valid passport whilst in Australia. If the applicant was unable to enrol by reason of his expired passport, then it has been the applicant who has essentially caused the period of non-enrolment. Accordingly the Tribunal finds that the reasons for the non-enrolment for the period of 10 months are predominantly for reasons that were the responsibility of the applicant although it does accept that for a small percentage of that time that the non-enrolment occurred by reason of the loss of CRICOS accreditation by Australian Global College.
Having regard to the substantial period of non-enrolment in which the applicant was in breach of his visa and the duration of the breach, the Tribunal gives it some weight towards the visa being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled. The applicant gave extensive evidence of the hardship that would be imposed by the cancellation in that:-
a.he claims that he would not be able to work or do anything back in Lebanon without obtaining a Bachelor’s degree;
b.secondly he would not be able to go back and study in Lebanon because the way they study in Lebanon is a different way of studying from Australia;
c.if he returned to Lebanon without obtaining a Bachelor’s degree his family would have lost all the funds that they had advanced to him for the purposes of gaining his education here in Australia;
d.he has suffered substantial hardship here in Australia with repeated hurdles on his own without being supported by his extended family and uncles who live in Australia;
e.if he returned to Lebanon without a degree his family would no longer trust him because he would have not been able to complete his studies here in Australia.
The applicant’s evidence as to his inability to study back in Lebanon was general and he did not provide any detail of what courses he had enquired into and whether he could undertake those studies at his age with his level of qualifications. The Tribunal does not accept his evidence that he would not be able to undertake studies or work back in Lebanon.
Further notwithstanding the applicant’s family has invested a substantial amount of funds in the applicant’s studies in Australia, he has completed a number of courses including a Certificate IV in Accounting, a Diploma in Business and his time in Australia has not been wasted.
The applicant has given evidence that if possible he intends to remain in Australia to complete his Advanced Diploma of Leadership & Management and then undertake a Bachelor of Business before returning home to gain employment in Lebanon. It is unclear from his evidence what position he would actually take up in Lebanon.
The Tribunal finds that the matters raised by the applicant may be the consequences of the visa cancellation, but they are not matters that would constitute an overwhelming degree of hardship sufficient to weigh against the cancelling of the visa.
The Tribunal considers the above matters give some weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
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.
The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.
Ultimately the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by his reasons for non-enrolment, save for a short period of time which is explained by AGC losing its CRICOS accreditation and the applicant needing to find an alternative course and enrol.
The applicant knew and was aware that by not being enrolled in a registered course of study he would have been in breach of condition 8202 and that his visa may be cancelled.
The primary purpose of the applicant under the visa is to undertake a registered course at a level appropriate to his visa and the applicant was not enrolled for a period of nearly 10 months which is a long period to be in breach of the visa.
The Tribunal has considered the applicant’s explanation for why he was not enrolled for this long period and therefore in breach of condition 8202(2). Other than accepting that the loss in CRICOS accreditation of the Advanced Diploma course he was to study at AGC, was the fault of the education provider and provides an explanation for not being enrolled for two to three months, the Tribunal does not accept the remaining circumstances were beyond his control or that the circumstances indicate reasonable explanations for not being enrolled for the remaining seven to eight months. The Tribunal gives this matter substantial weight towards the visa being cancelled.
Past and present behaviour of the visa holder towards the Department
According to the Decision Record, the applicant had responded to the NOICC as set out above. Further there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.
Whether there would be consequential cancellations under s.140
As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.
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
If the Tribunal decides to affirm the decision to cancel the visa under these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further pursuant to s.48 of the Act the applicant will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of further visas.
Further, if the Tribunal decides to affirm the decision to cancel the TU 573 student visa under these grounds, then the cancellation will come within the identified risk factors to make the applicant meet Public Interest Criterion 4013 of Schedule 4 to the Regulations, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next three years.
However, these consequences are the intended consequences of the legislation when a visa is cancelled under these grounds.
The applicant gave evidence that if the visa remained cancelled he would return to Lebanon and therefore there is no indication that he would become unlawful or be subject to detention.
Accordingly the Tribunal gives this factor marginal weight towards the visa not being cancelled.
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
This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to Lebanon and he did not give any reasons as to why he could not return to Lebanon and he has not made any claims that relate to this consideration. Accordingly the Tribunal gives this factor no weight towards the visa not being cancelled.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.
Any other relevant matters
The Tribunal is not aware of any other relevant matter in relation to the decision whether the visa ought to be cancelled.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Michael Biviano
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.

[2019] AATA 5014

13 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Breach

Jurisdiction

Statutory Construction