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

1. 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).

2. 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.

3. 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.

4. 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).

5. 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.

6. 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 of the Tribunal’s review.

7. The applicant appeared before the Tribunal by video from Melbourne on 5 March 2019. He was represented in relation to the review by his registered migration agent, who attended the hearing.

8. Pursuant to s.359AA of the Act, the Tribunal advised the applicant during the hearing that it had information, including that covered by the s.375A certificate, which it considered valid, which would lead or could contribute, subject to his comments in response, to the decision under review being affirmed. The Tribunal advised that the information included information provided by and about his first wife, the gist of which was that he was not a genuine student and that his first marriage (to a Jordanian-born Australian permanent resident) was not a genuine relationship. The Tribunal advised that the information was relevant because it indicated that his intention was to obtain permanent residence and that he was using the Student visa program to remain in the country pending the lodgement a Partner visa.

9. The Tribunal advised the applicant that the information also included copies his Provider Registration International Student Management System (PRISMS) records, showing his course enrolments and outcomes. The applicant confirmed that he understood the relevance of the information, and that he understood the Delegate’s decision.

10. Prior to the hearing the Tribunal issued the applicant with a copy of the s.375A certificate. At hearing the applicant confirmed that he had received it. He did not dispute the validity of the certificate, and advised that he was familiar with the information it covered, namely police reports and court outcomes arising from a domestic violence incident around the time of the breakdown of the marriage.

11. The applicant sought and was granted one adjournment during the hearing in order to consider his response to questioning by the Tribunal based on the information covered by the certificate and the Tribunal’s s.359AA advice. The applicant consulted with his representative during this adjournment.  

12. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

13. 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

14. 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?

15. 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.

16. 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.

17. 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.

18. 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’.

19. 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’.

20. To satisfy cl.573.231 the applicant must be enrolled in and remain enrolled 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. In this case, the applicant was required to remain enrolled in courses in the higher education sector.

21. At hearing the applicant confirmed that he understood the Delegate’s decision and why he was in breach of condition 8516.

22. 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

23. 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.

24. 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.

25. 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’. 

26. 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.

27. 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.

28. 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.

29. 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.

30. The Tribunal asked the applicant when he and his ex-wife divorced. He stated that he could not remember. The Tribunal asked the applicant how old he was. He confirmed that he is 30 years old. The Tribunal asked the applicant how old his ex-wife was. He said he didn’t know. The Tribunal expressed disbelief that he didn’t know the age of a person he had married. After some hesitation, he advised that his ex-wife was a bit older than him, and was about 37 or 38. The Tribunal asked the applicant if he wanted to reconsider this response. The applicant repeated that his ex-wife was 37 or 38 years old. The Tribunal put to the applicant that his ex-wife was 50 years old, and was 47 or 48 years old at the time of their marriage in April 2015. The applicant did not dispute this. When the Tribunal asked the applicant why he had testified to the Tribunal that his ex-wife was 37 or 38 years old, he responded that he ‘didn’t want to think about her’.

31. The Tribunal found the applicant vague and evasive on the issue of his first wife and marriage. He acknowledged that he married his first wife two months after meeting her. He claimed that he ‘had’ to marry for cultural and religious reasons, but he was reluctant at hearing to explain or elaborate on these reasons. He stated that he didn’t want to talk about his first wife and marriage because he ‘didn’t want to think about her’. The Tribunal further found the applicant’s ‘stepping stone’ and Gulf countries employment prospects explanations for his enrolment in a number of VET courses contrived and unconvincing. The Tribunal did not find the applicant to be a truthful or credible witness, and considers that he has manipulated his circumstances to remain in Australia.

32. At hearing the applicant confirmed that he no longer claims to suffer from mental illness in the form of anxiety and depression as he claimed at the time of the first Tribunal hearing. In response to questioning he acknowledged that it is his intention to lodge a Partner visa application based on his second marriage, to an Australian citizen of Eritrean background, and that he wants his Student visa restored so he can lodge this application onshore, as a substantive visa holder, and avoid the Schedule 3 requirements. He claimed that his current wife suffers from a mental illness, bipolar disorder, which renders her incapable of working more than one or two days a week. He claimed that he provides her with financial (since being granted work rights early in 2019) as well as emotional support.

    Should the discretion be exercised?

33. There are no matters specified in the Act or Regulations that must be considered in the exercise of the discretion not to cancel the visa. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and has considered matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out under the headings below.

    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

34. The Tribunal does not accept the applicant’s claim to want and intend to complete his Advanced Diploma of Business despite his previous poor achievement and his acknowledged intention to remain in this country on a Partner visa. On the evidence provided, the Tribunal does not accept the applicant’s claim that he has completed a substantial amount of the coursework required.

35. The Tribunal is also unconvinced by the applicant’s further claim made at hearing that he ‘is thinking’ about going on to do a Bachelor Degree, with the intention of enhancing his employment prospects ‘either in Australia or the Gulf countries’.  The Tribunal notes that the applicant on his own admission has not left Australia since arriving in February 2013, and that he has never returned to Jordan or the Gulf countries to visit his family, let alone utilise the business skills and qualifications he has acquired to date. On his own admission the applicant does not intend to depart Australia and seek employment in Jordan or the Gulf countries. In Australia he has worked as a security guard and house painter.

36. As noted, the applicant wants his Student visa restored so he can lodge this application onshore, as a substantive visa holder, and avoid the Schedule 3 requirements. He claimed that his current wife’s mental disorder requires her to attend sessions every three to four weeks with her psychiatrist, and for this reason, as well as the time and expense involved in lodging a Partner visa offshore, he has a compelling need to remain in Australia.

37. The purpose of a Student visa is not to enable a person to remain onshore while they lodge a Partner visa. Whether the applicant has a compelling need to remain in Australia during the processing of a Partner visa application is an issue to be determined during assessment of that application.

38. In this case, under this consideration, the Tribunal gives minimal weight in favour of the applicant.

    The extent of compliance with visa conditions

39. The applicant has not complied with the conditions of his visa since his enrolment in his Bachelor of Engineering was cancelled on 19 August 2013. The Tribunal finds the extent of the applicant’s non-compliance to be significant, and affords him minimal weight under this consideration.

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

40. When asked at hearing what hardship he would suffer if the visa remains cancelled, the applicant stated that it would be costly for him to have to lodge his Partner visa application offshore, and claimed that he and his wife would suffer emotionally if they were separated. As noted, he claimed his wife suffers from bipolar disorder, and for this reason would be unable to accompany him for even a temporary period offshore.

41. As noted the purpose of a Student visa is not to enable a person to remain in Australia so they can lodge a Partner visa onshore, and the issue of compelling circumstances will be addressed during assessment of the Partner visa application.

42. For these reasons, while accepting that some hardships might be caused by the applicant’s separation from his wife, the Tribunal gives minimal weight in favour of the applicant under this consideration.

    Circumstances in which ground of cancellation arose

43. The applicant maintained that he was the victim of misinformation in that that he took the advice of his brother to enrol in easier, business courses and was assisted by an agent who packaged his enrolments. At hearing he claimed that ‘no-one guided me on the right thing to do’.

44. The Tribunal put to the applicant that he has provided to the Tribunal a copy of his release letter from Griffith University, dated 19 August 2013, and that the second sentence in this letter advised him to ‘Please contact the Department of Immigration and Citizenship (DIAC) to seek advice on whether you require a new student visa’. The applicant confirmed that he had received, read and understood this letter. He repeated that he relied on an agent to package new courses for him.

45. The Tribunal put to the applicant that he had signed a declaration at the time of application that he understood the conditions attached to his visa and that it was his responsibility to be aware of and to comply with these conditions. The applicant acknowledged that he had signed such a declaration. The Tribunal put to the applicant that he was informed by the Department that he was required to consult the Department regarding significant changes in his circumstances, such as enrolling at a lower level in a completely different field of study that could have implications for his visa and stay in Australia.

1. The applicant accepted that he had received such information. He confirmed that he never contacted the Department regarding his changed circumstances. He said he received advice from his brother in Saudi Arabia and, as noted, help from an agent, whom he thought was a migration agent but who might have been an education agent.

2. The Tribunal does not accept the applicant’s claim to be the victim of misinformation. The Tribunal notes that at hearing the applicant acknowledged that the circumstances of his visa cancellation were not beyond his control. The Tribunal considers that the applicant has manipulated his circumstances so as to maintain residence in this country.

3. The Tribunal gives minimal weight in favour of the applicant under this consideration.

   Past and present behaviour of the visa holder towards the department

4. The applicant responded to the Department’s NOICC in the specified time-frame. However, as discussed above, he at no time contacted the Department regarding his changed circumstances.

5. The Tribunal gives minimal weight in favour of the applicant under this consideration.

   Consequential cancellations under s.140

6. The applicant has no dependents and his wife is an Australian citizen. There would be no consequential cancellations. The Tribunal gives no weight to this matter.

   Mandatory legal consequences

7. There is no information before the Tribunal to indicate that the applicant would not be eligible to apply for another Bridging Visa E to enable him to remain in the country and out of detention following the cancellation of his visa. The Tribunal notes that at the time of decision, the applicant is on a Bridging E visa with work rights.

8. The Tribunal has considered the submission of the applicant’s representative that the applicant would be unable to apply for another Student visa within three years of the visa cancellation. The Tribunal acknowledges the applicant’s argument that he could have recovered from his poor performance and finished his Advanced Diploma of Business, but notes that the applicant showed insufficient aptitude or interest in his coursework before his enrolment was cancelled to successfully complete any units. The Tribunal further notes that the applicant has advised that he intends to lodge a Partner visa application, not another Student visa application.

9. The Tribunal acknowledges that if the applicant does not hold a substantive visa he will be required to lodge his Partner visa application offshore. As noted, the Tribunal considers that the matter of compelling circumstances arising from his marriage is an issue for assessment of his Partner visa application.

10. The Tribunal gives minimal weight in favour of the applicant under this consideration.

    International obligations

11. The applicant has no children. He confirmed at hearing that he has no reason to fear returning to Jordan, including for any grounds under the 1951 United Nations Convention on the Status of Refugees.

12. The Tribunal gives no weight to this consideration.

    Any other relevant matters

13. No other relevant matters were before the Tribunal or raised by the applicant or his representative.

14. Having considered the applicant’s circumstances, and considered matters that might favour exercising the discretion, singly and cumulatively, the Tribunal finds the grounds for exercising the discretion are minimal and outweighed by the grounds for cancelling the visa.

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

    DECISION

16. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Adrienne Millbank
    Member