Alghawi (Migration) - [2019] AATA 1906

Alghawi (Migration) [2019] AATA 1906 (26 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tha'er Jehad Rushdi Alghawi
CASE NUMBER:  1822741
HOME AFFAIRS REFERENCE(S):           BCC2015/1611691
MEMBER:Adrienne Millbank
DATE:26 March 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 26 March 2019 at 3:44pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Federal Circuit Court remittal – existence of s 375A certificate – ground for cancellation – continue satisfaction of primary criteria – ceased to be enrolled in a Higher Education Sector course – consideration of discretion – poor academic performance – adverse information by ex-wife – intention to lodge Partner visa application onshore – not a genuine student – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 338
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 October 2015 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).
The applicant is a 30 year old national of Jordan. He first arrived in Australia on 18 February 2013 enrolled in an English language course to be followed by Bachelor of Engineering degree course at Griffith University.
The applicant’s enrolment in his Bachelor of Engineering course was cancelled on 19 August 2013 for the reason of non-commencement of studies, and he enrolled in certificate, diploma and advanced diploma-level courses in business, in the Vocational Education Sector.
The Delegate cancelled the visa under s.116(1)(b) on the basis that the applicant breached condition 8516 which was attached to his Student (Higher Education Sector) (Subclass 573) visa. The Delegate found that the applicant was not enrolled in a bachelor or masters degree course, nor 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 (IMMI 14/015). The Delegate found the applicant had not continued to be a person who met subclauses 573.231 or 573.223(1A).
The Delegate further found, after considering reasons to exercise discretion, that the reasons for cancelling the applicant’s Higher Education visa outweighed the reasons for not cancelling it.
The applicant applied to the Tribunal for review of the decision, and the (differently constituted) Tribunal affirmed the Delegate’s decision on 21 September 2017. The applicant applied for judicial review on 26 October 2017. On 9 July 2018 the Federal Circuit Court of Australia remitted the decision for reconsideration on the grounds that the applicant was denied procedural fairness: the existence of a s.375A certificate issued by a Delegate on 11 November 2015 had not been disclosed to the applicant in the course…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Alghawi (Migration) [2019] AATA 1906
Case: [2019] AATA 1906
Decision Date: 26 March 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), held by the applicant, Mr Alghawi. The dispute centred on whether the grounds for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to determine if the applicant had contravened a condition of his visa, specifically condition 8516, which mandates that a visa holder must continue to satisfy the criteria for the grant of their visa. This involved assessing whether the applicant remained enrolled in a higher education course as required by his visa subclass. The Tribunal also had to consider whether, if the ground for cancellation was established, the Minister's discretion to cancel the visa should be exercised, taking into account all relevant circumstances.

The Tribunal found that the applicant had contravened condition 8516 because his PRISMS records indicated he was not enrolled in a higher education level course after August 2013. Despite the applicant's claims of poor advice and an intention to use vocational education and training (VET) courses as a pathway to higher education, the Tribunal was not satisfied by the evidence that he was on track to complete his VET studies or that he genuinely intended to return to higher education. Furthermore, the Tribunal considered adverse information provided by the applicant's ex-wife, which suggested he was not a genuine student and intended to lodge a Partner visa application onshore. The Tribunal concluded that the ground for cancellation existed and, considering all circumstances, exercised its discretion to affirm the decision to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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 s.116(1)(b). 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? 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 attached to the applicant’s visa. Condition 8516 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 a criterion requiring the applicant to be enrolled, it has been held that this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type 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. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the Delegate’s decision was IMMI 14/015. In this case, the applicant was required to be enrolled in a higher education course. The applicant’s PRISMS records show the following course enrolments and outcomes, and that after August 2013 the applicant was not enrolled in a higher education level course: English language Programs (Beginner to Advanced) 5-50 weeks: 18/03/2013 – 28/06/2013. Finished. Bachelor of Engineering: 22/07/2013 – 30/06/2017. Cancelled on 19/08/2013 for the reason of non-commencement of studies. Certificate IV in Business (VET sector): 16/09/2013 – 30/03/2014. Finished. Diploma of Business: 21/04/2014 – 26/01/2015. Finished. Advanced Diploma of Business (VET sector): 20/04/2015 – 18/03/2016. Cancelled Advanced Diploma of Business (VET sector): 24/08/2015 – 18/03/2016. Cancelled. In his response of 6 October 2015 to the Department’s Notice of Intention to Consider Cancellation (NOICC) of 15 September 2015, the applicant did not dispute that he had contravened condition 8516, but claimed this was the result of poor advice. He stated that ‘if’ he had made a mistake, it was ‘the result of misinformation’. In a written submission dated 1 March 2019, the applicant acknowledged through his representative that he enrolled in VET courses, but maintained that it was his intention ‘all along’ to return to the higher education sector after completing his certificate, diploma and advanced diploma courses. He argued that the purpose of his enrolment in the VET sector had been to create for himself ‘a step-by step pathway for a smooth transition into a Bachelor Degree’.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.Adrienne MillbankMember

Ratio Decidendi

Legal Principle Established

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 The applicant described at hearing how he decided after his initial English studies early in 2013 that a Bachelor of Engineering would be too hard for him, and that he could improve his English while engaged in easier, certificate and diploma level studies, in business. He said that he took the advice of his brother in Saudi Arabia, who told him he could find a good job in the Gulf countries with business qualifications. At hearing the applicant confirmed that he has not been engaged in any studies since his enrolment in his Advanced Diploma of Business was, as advised in a letter dated 20 January 2017 from his course provider, cancelled on 3 November 2015. Regarding this cancellation the applicant claimed that he did in fact complete a number of units and assignments for his Advanced Diploma course, and that he was on track to complete it when the visa was cancelled. The Tribunal referred the applicant to the letter signed on 20 January 2017 by the Principal of Academique Training Institution, which he had provided to the previously constituted Tribunal. This letter, besides confirming the date of the applicant’s enrolment cancellation, advised that the applicant had received warnings for not making course progress; that he had not completed any unit of competency; that he could not be issued with a Statement of Attainment; and that while he had claimed he had tasks in preparation, and students in his position could recover and complete the course in the scheduled time, ‘not submitting any tasks across a whole term was, however, an obvious violation of the conditions of his visa’. After the hearing, on 5 March 2019, the applicant provided evidence that he had emailed to his course provider on 28 October 2015 two word documents, named ‘assignment 1’ and ‘develpingplan’. He provided also an email from his course provider dated 29 October 2015 informing him that he had not submitted enough satisfactory work to make course progress for the August and September term, and that he had sent one task from the wrong term. The applicant confirmed that he has not departed Australia since arriving in February 2013, and that he has not sought employment connected to his field of studies. The Tribunal does not accept on the evidence provided that the applicant was on track to successfully complete this Advanced Diploma of Business, or indeed that he had much interest in or aptitude for the course. The Tribunal does not, on the evidence provided, accept that he was motivated to study this and his previous courses as stepping stones towards a return to higher education, bachelor level studies. The Tribunal asked the applicant to respond to allegations made by his former wife that he was not a genuine student and was using her to gain permanent residence. The applicant submitted that his ex-wife is not a credible witness, and was motivated by malice to ‘destroy my reputation with the Immigration Department’. He provided evidence that he had been found not guilty of a criminal charge of assault arising from an incident attended by the police during the breakdown of his marriage.