ALDERHALLY (Migration)

[2019] AATA 1613

ALDERHALLY (Migration) [2019] AATA 1613 (16 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MOHAMMAD OTHMAN ZAKI ALDERHALLY

CASE NUMBER:  1620531

HOME AFFAIRS REFERENCE(S):           BCC2016/3037169

MEMBER:Wendy Banfield

DATE:16 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 16 January 2019 at 2:34pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 572 Vocational Education and Training Sector – Master of Engineering – not enrolled in registered course for more than one year – personal problems – significant breach – no compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 8, condition 8202, Public Interest Criterion 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 November 2016 made by a delegate of the Minister for Immigration and Border Protection 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 course of study from 7 October 2015 to 31 October 2016 and was therefore in breach of the conditions attached to his student visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of Jordan and is currently 41 years old. He came to Australia in 2013 to study a post-graduate degree. The applicant completed a Master of Engineering Studies and enrolled in Diploma level courses in Management and Marketing. He experienced personal problems in 2015 and 2016 and did not continue his studies for a 12 month period.

4. The applicant appeared before the Tribunal on 5 December 2018 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.

   Evidence of the visa applicant

6. The applicant advised he came to Australia in October 2013 to study a Master of Engineering Studies at UTS. He said he obtained a Bachelor’s degree in Cyprus and had worked in Saudi Arabia training and teaching prior to arriving in Australia. The applicant completed his Master’s degree in December 2014. Regarding his plans after that, the applicant stated he planned to return to Jordan, however, because his studies had only taken one year, he could not find a job in line with his qualifications. According to the applicant he had to upgrade his qualifications.

7. The applicant referred to having to defer his studies in the second year. The Tribunal asked the applicant to clarify what he was studying in his second year. He said his intention was to compliment his first year with further studies in a specific area to help him establish his own business. The applicant confirmed he was enrolled in a Diploma of Management but did not continue as it was not a suitable course. The applicant enrolled in a Diploma of Marketing instead. In order to establish his own business, the applicant said he was advised to study Marketing as it would help him in future.

8. The Tribunal asked the applicant to explain the circumstances that led to him discontinuing his studies in October 2015. After completing his Master’s degree, the applicant said he visited his family in Jordan. He had planned to stay for one or two months, however, his wife was ill with eczema and required his support, particularly because the couple have three children. He said he time away extended beyond what he had planned. The applicant was asked why he did not defer his studies and stay with his family while they needed support.  He said it was because he was enrolled to study in Australia and he thought his wife would be alright. However, the applicant said he remained in Jordan for several months. He claimed he communicated with the college about his situation and they told him it would not be a problem and to take his time. He declared he was told he would be issued a new COE on his return.

9. The applicant said he re-enrolled and attended orientation on his return to Australia. The applicant was asked to comment on the Department’s finding that he was not enrolled to study for one year between October 2015 and October 2016. He said at the time he had a COE for a Diploma of Marketing but the Tribunal put to him that his enrolment was cancelled. The applicant then claimed he had not been told about the cancellation. The applicant said at the time there was another circumstance in that his father was ill while he was in Jordan. He said he was very attached to his father and had lived close to him. After a number of hospital visits the applicant found out his father had cancer. The Tribunal asked the applicant why he stayed in Australia given this situation. He said he was conflicted about whether to finish his studies and was also considering his children so he waited here hoping for good news about his father. Instead his conditions got worse.

10. During the time he remained in Australia, the applicant said he was psychologically affected and sought help. After six months he learnt his father passed away in mid-2016. According to the applicant he did not return to Jordan then. Prior to his father’s death, the applicant had not been able to afford to go back and also did not want to see his father suffering.

11. Regarding future intentions, the applicant said he wanted to continue his academic career but needs to complete further study. He said he had been accepted into Torrens University to study an MBA. The applicant was asked about his written statement in which he claimed he could not study but had been working part-time. The applicant said as a student he was eligible to work 20 hours a week and had been employed in security.

12. The applicant was asked whether he had a compelling need to remain in Australia and he claimed he did. He referred to having to completed his Master’s degree in one year but explained issues had occurred that were beyond his control. Regarding his need to complete an MBA, the applicant said although he has a Master’s degree, he would not be able to obtain a suitable position and needs to have higher qualifications. He said an MBA will give him better options to pursue either an academic career or a business.

13. The applicant claimed he would suffer hardship if he is not able to continue studying. He referred again to wanting to have options in his future career and said he would also feel like a failure if he is unable to reach his goal. The applicant said he had been required to study, as well as support himself and his family which in combination, impacted upon him. The applicant said he would be psychologically disadvantaged and his self-esteem is suffering. The applicant referred to having achieved good results and previously and had been able to combine it with work but the loss of his father affected him.

14. The applicant declared he had complied with all other visa conditions and that no one else would be impacted by the cancellation of his visa. The applicant said he understood that if his visa is cancelled, there would be legal consequences. The Tribunal explained this would include limited options to apply for any other visa, and he would have to meet public interest criteria in future. It was also explained he may be prevented from applying for another visa for three years. The applicant was asked if he wished to comment and he claimed he had been disadvantaged because he did not know about the visa being cancelled. The applicant referred again to the psychological impact of losing his father which affected his ability to continue studying. He was asked if he sought advice about his personal problems at the relevant time and he said he was not thinking properly due to his psychological issues.

15. The representative requested time after the hearing to make a further written submission which the Tribunal agreed to. A written statement was provided after the hearing.

    Post-hearing submission

16. In a written statement dated 17 December 2018 the applicant provided an explanation as to why he returned to Australia instead of staying in Jordan when his wife was unwell. He stated he le ft Jordan after spending time supporting his family because he had committed time and money to his studies and he aimed to finish. He said he needed to complete his studies in order to obtain a suitable job and support his family.

17. After returning to Australia the applicant’s father became ill as well and he was conflicted about his situation. Due to the weight of these issues, the applicant said he was unable to focus on anything. He said he did not return to be with his father as he hoped he would get better. Upon his father passing away, the applicant said he was stressed and unproductive.

18. The applicant further addressed the consequences of his visa being cancelled. He said he would feel like a failure and requires a second Master’s degree to either find a suitable job or open his own business. According to the applicant he and his wife would be distressed if his visa is cancelled due to the financial implications and the view that their separation would be for nothing. The applicant said he would be forced to find a job that does not pay well and involved longer hours. The applicant claimed he was never made aware of his COE being cancelled which is why he did not take action at the time.

19. 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

20. 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?

21. 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).

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

23. The applicant did not dispute that he was not enrolled to study for a period of 12 months, from 7 October 2015 to 31 October 2016. After completing a post-graduate degree, the applicant had been enrolled in Diploma courses in Management and Marketing; however, both those courses were cancelled. 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

24. 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 to or remain in Australia

25. The applicant travelled to Australia to undertake a Master’s degree which he completed in December 2014. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

26. During the Tribunal hearing the applicant made a submission regarding his apparent need to complete an MBA which he claimed was a compelling reason for him to remain in Australia. The applicant said although he has a Master’s degree, he would not be able to obtain a suitable position and needs to have higher qualifications. He said an MBA will give a range of options to pursue. The Tribunal has carefully considered the evidence before it regarding the applicant’s claims in this regard. While the applicant may want to continue his studies in Australia, his claims were general in nature and unsupported by independent evidence. As such, he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

27. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this aspect some weight in the applicant’s favour.

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

28. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled.

29. During the hearing the applicant claimed he would suffer hardship if he is not able to continue studying including a lack of career options and feeling like a failure. The applicant said he would be psychologically disadvantaged and his self-esteem would suffer. In his written statement post-hearing the applicant expanded upon his claims regarding the effects of cancellation. This included having wasted time and money, questions arising as to why he did not finish his second course of study in Australia, difficulty in finding a suitable job in future, physical separation from his wife being for nothing and not wanting to appear to be a failure to his children.

30. The Tribunal acknowledges that the cancellation of the visa would mean the applicant would not be able to continue his studies in Australia and this may cause a degree of financial, psychological or emotional hardship. However, the applicant has not demonstrated a significant level of hardship that would result if his visa is cancelled. He already holds a Bachelor and Master’s degree and has relevant work experience in the past, all of which will assist him in his career in future. The Tribunal does not accept the inability to study an MBA in Australia will render everything else he has achieved as useless or that he will be perceived as a failure in his home country.

31. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     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

32. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for a 12 month period. The applicant gave two reasons for this, one was his wife in Jordan suffering from ill health and the other was the death of his father following a medical condition. The applicant had returned to his home country to visit his family and according to his evidence, remained there for several months longer than planned. The applicant provided evidence of his wife’s illness in the form of a medical certificate dated 1 July 2015. It states the applicant’s wife was pregnant at the time and had high blood pressure, high blood sugar and protein in urine. In his written statement dated 24 November 2018 the applicant declared his wife had been diagnosed with bronchial asthma as well as the aforementioned conditions although the evidence regarding this condition is dated 14 November 2017. This was well after the period during which the applicant was not enrolled to study while holding a student visa. Medical evidence was provided regarding the ill-health and death of the applicant’s father which the Tribunal accepts.

33. The applicant said in his written submission post-hearing that he was not told his COE had been cancelled. However, during the hearing when asked directly about his actions while he was away from his studies, the applicant claimed his education provider told him his absence would not be a problem and to take his time. The Tribunal is not satisfied the applicant would have received such a casual and ill-informed response from the college when compliance with visa conditions is a serious matter that registered training institutions are well aware of. There is no evidence the applicant contacted or sought advice from the Department about his situation.

34. The applicant provided a medical certificate from a general practitioner dated 26 November 2016 and a brief psychological report of the same date. The doctor’s letter stated the applicant had been attending during 2016 due to depressive symptoms and had been referred for therapy. The applicant was then diagnosed with anxiety and depression due to the death of his father and family problems. The Tribunal notes the applicant obtained these reports after he had failed to maintain his enrolment for a considerable period of time and the nature of his consultations before

35. The Tribunal sympathises with the applicant regarding his personal problems; in particular, his father’s death and accepts this unfortunate event was beyond his control. Nevertheless, the applicant’s response to these matters was within his control. It was open to the applicant to formally postpone his studies until he had an opportunity to manage his personal life and recover from his grief. The issues faced by the applicant are part of the vicissitudes of life that most people encounter at some point. Although they are stressful events they are not adequate reasons for the applicant to stay in Australia while failing to comply with the conditions of his student visa and failing to study over a long period of time.  

36. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study or seek a deferment of his studies while he dealt with personal problems in his life. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

37. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

38. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

1. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be 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

2. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

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

3. The Subclass 572 Student Visa is not a permanent visa.

   ·     any other relevant matters

4. There are no other relevant matters to be considered in the applicant’s case.

   Conclusion

5. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the personal problems encountered by the applicant are sufficient reason for the visa not to be cancelled.

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

   DECISION

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

   Wendy Banfield
   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.