Aljaroudi (Migration)

[2017] AATA 2774

Aljaroudi (Migration) [2017] AATA 2774 (20 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hussain Hassan H Aljaroudi

CASE NUMBER:  1617360

DIBP REFERENCE(S):  BCC2016/2874120

MEMBER:Kate Millar

DATE:20 December 2017

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 20 December 2017 at 3:38pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in registered course – Compassionate circumstances – Chronic illness – Death of family members – King Abdullah Scholarship Program – Procedural delay in obtaining scholarship

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8202, 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Aljaroudi is a citizen of Saudi Arabia.  He first came to Australia in 2008 as a chaperone for his sister Narjes, who had a scholarship to study in Australia.  Most recently he applied for and was granted a Subclass 573 (Higher Education Sector) visa on 13 March 2015 to study electrical engineering.

2. A delegate of the Minister for Immigration and Border Protection cancelled his visa on 12 October 2016 under s.116(1)(b) of the Migration Act 1958 (the Act)for failing to comply with the conditions of his visa, and specifically the condition that he remain enrolled in a registered course. 

3. This is an application for review of the decision to cancel the Mr Aljaroudi’s Subclass 573 Higher Education Sector visa. The issues in this case  is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. Mr Aljaroudi appeared before the Tribunal on 24 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from a friend Mr Albdulmajeed Almutary and his girlfriend Ms Chain Wei Chang.  Mr Aljaroudi was represented by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. As it applies in this case, it requires that Mr Aljaroudi is enrolled in a registered course: 8202(2)

8. Mr Aljaroudi was not enrolled in a course from 12 December 2015 until 13 October 2016.  As he was not enrolled he is in breach of condition 8202. 

   Consideration of the discretion to cancel the visa

9. Having found Mr Aljaroudi has not complied with a condition of his visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

10. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

11. Mr Aljaroudi said he arrived in Australia in in 2008 without any English language skills as a chaperone for his sister who was studying in Australia.  He started a Diploma in Electrical Engineering in 2011 but found it hard to understand, and ceased in 2012.  He has not completed three of the subjects for this diploma, and as each costs $1,600 he could not afford to complete these units.  He commenced a Diploma of International Business in semester 2 of 2013, but failed three subjects.  He commenced a Diploma of Engineering at the South Australian Institute of Business and Technology in semester 1 of 2014.  He was successful in his first semester, but in second semester failed one subject.  He passed his subject on the third semester.  His record of results shows he was enrolled in first semester of 2015 but no results are entered from the subject in which he was enrolled. 

12. He successfully returned to the Diploma of International Business in semester 2 of 2015 and obtained his Diploma. 

13. A letter of admission issued by the University of South Australia on 1 July 2016 indicates that he was due to commence a Bachelor of Engineering (Honours) on 25 July 2016.  The Department contacted the university and were informed that the applicant did not commence studying in 2016 .       

14. Mr Aljaroudi provided an offer for admission for a Bachelor of Engineering at Flinders University approved on 3 November 2017 and commencing 26 February 2018.  This is subject to him meeting the genuine temporary entry/genuine student requirements.

15. Mr Aljaroudi was issued a notice of intention to cancel his visa by the Department on 12 September 2016 and provided responses by email on 16 and 26 September 2016 and on 5 October 2016.  The applicant provided the following documents in response:

    ·Certificate of completion for Diploma of International Business dated 18 April 2016

    ·UniSA offer for Bachelor of Engineering (Honours) Electrical and Electronic 2016

    ·Three Confirmation of Enrolments

    ·Letter of offer to SAIBT offer dated 15 February 2014

16. In his response to the notice, Mr Aljaroudi said that his purpose in coming to Australia was to study.  He stated that his non-compliance with the conditions of his visa was due to circumstances beyond his control and that delays in obtaining his scholarship resulted in him missing the deadline for the University of South Australia July intake.  Mr Aljaroudi stated that the issues with his scholarship and enrolment caused him mental stress and to feel very depressed.  His family decided to fund him to study an advanced diploma and once he received his scholarship approval he intends to enter university.

17. Mr Aljaroudi suffers from sickle cell anaemia, and provided test results confirming that he has this condition.  Mr Aljaroudi told the Tribunal that in 2011 his older brother, who was supporting the family, died from sickle cell anaemia, and provided a death certificate for Ali Hassan Habib Al-Jaroudi.

18. Mr Aljaroudi’s sister Narjes also has sickle cell anaemia, and has required his care while she was in Australia.  Mr Aljaroudi provided letters confirming she has this condition as well as a statement from Narjes that she requires a family member with her when she is unwell.  Narjes has completed her Masters degree in Australia and is now studying a PhD in nutrition in South Korea.  Given she is in South Korea without family support at the current time, I place little weight on her need for support. 

19. Mr Aljaroudi’s younger brother Abbas Hassan Aljaroudi died in a traffic accident on 1 January 2016.  As a result Mr Aljaroudi said he tried to return to Saudi Arabia, but was not able to return to Saudi Arabia in time for the funeral as his passport had expired and he was unable to obtain a travel pass from the consulate before the funeral.  He said his family then advised him to remain in Australia to get a scholarship and finish his studies.  Mr Aljaroudi said he wanted to return to support his family after the death of his brother and as a result was very depressed. 

20. Mr Aljaroudi was in Australia on a scholarship from the Saudi government.  As he did not complete his studies in the required timeframe, his scholarship was cancelled in June 2015, and he was advised he would need to complete his studies at TAFE supporting himself and then could apply to have his scholarship reinstated.  The scholarship gave him an allowance of $3,000AUD per month as well as paying his fees for University.  He was advised he would have to study to finish at TAFE using his own financial resources, and that when he was offered a place in University his scholarship will be reinstated. 

21. Mr Aljaroudi studied at TAFE to complete his Diploma and sent his documents to Saudi Government to seek reinstatement of his scholarship.  There was further delay as the Saudi Government wanted the parchment from his diploma to prove he had finished the course.  This was because the offer from the University was conditional on him holding a diploma, and the government wanted an unconditional offer before reinstating his scholarship.  Mr Aljaroudi said he owed fees at the time he finished and could not obtain the parchment until 18 April 2016.  He said this resulted in him not being able to enter University until the February intake.

22. On being asked if his scholarship had been reinstated, he said to have his scholarship he needs an enrolment, and he cannot enrol because his visa is cancelled.  He said once he has a visa he can enrol and his scholarship will be reinstated.  He said the process is to provide a copy of his visa and the offer from the University to the government and within a few weeks they will reinstate his scholarship.  The consulate in Canberra will arrange the financial guarantee for his Bachelor of Engineering. 

23. On being asked if he had anything to show that his scholarship will be reinstated he said there is a student portal from which he he requests the financial guarantee, but he does not have any documents to show he wold be granted the scholarship.  He said he has to apply with proof he is in the country, he has a valid visa, and with a new offer that shows study beginning in the next intake, and his TAFE SA parchment.

24. A letter was provided from the Royal Embassy of Saudi Arabia stating Mr Aljaroudi was a previous Saudi sponsored student until 17 July 2015 and has applied to reinstate his scholarship.  The letter states it should not be considered a financial guarantee. 

    Purpose of applicant’s travel to Australia

25. The purpose of the visa is to allow the visa holder to travel to Australia to study.  

26. An academic transcript for a Diploma of International Business shows he failed three subjects in 2013 and successfully repeated these in semester 2, 2015.  His record for the Diploma of Engineering shows he failed two subjects. 

27. In response to the Tribunal’s concern about his ability to successfully study a degree in engineering given his past difficulty with passing subjects, he said that this happened because of circumstances in his life at the time.  He said now things are better as his sister is studying and his family is supporting him.  He said he is older now and has learned from his experience. 

28. In circumstances where two of his brothers have died while he is in Australia, I accept this caused him difficulty studying and has affected his ability to complete his study in the past.

    Are there compelling reasons for Mr Aljaroudi to remain in Australia?

29. Mr Aljaroudi said at hearing that if he leaves Australia his scholarship will be more likely to be cancelled and he needs a visa and an offer for a course to be eligible for the visa.  If he is in Australia, the scholarship will be processed.   

30. Mr Aljaroudi identified the scholarship as the King Abdullah Scholarship Program.  His evidence at hearing about the terms of his scholarship and the easier pathway in accessing the scholarship for people who are already living outside Saudi Arabia.  This is consistent with information available on the King Abdullah Scholarship Program, with reduction in the program reported to have reduced the number of institutions at which recipients can study and increased eligibility criteria.[1]  It is also consistent with independent evidence given by his friend Mr Almutary who was also a King Abdullah Scholarship recipient.

    [1] Saudi tightens rules for scholarships to study abroad Accessed 24 October 2017

31. I am satisfied that his opportunity to have his scholarship reinstated will be reduced if he leaves Australia. 

    Compliance with visa conditions

32. Given Mr Aljaroudi changed his course while he holds a subclass 573 (Higher Education) visa, and I had some concern about whether he complied with condition 8516 of his visa, however there is insufficient information before me to form any firm conclusion on his compliance with this condition. 

33. At hearing it was evident he had injured his hand, and said he had maintained his health insurance as required by the conditions of his visa. 

34. There is no other information to show he has not otherwise complied with conditions of his visa.

    Degree of hardship that would be caused by cancelling the visa

35. Mr Aljaroudi said he is now responsible for supporting his parents and he will need a good job to support them as they do not have a pension.  He said he has been depressed and stressed and is taking tablets to sleep.

36. Mr Aljaroudi will have increased difficulty having his scholarship reinstated if he returns to Saudi Arabia. 

    Circumstances in which the ground for cancellation arose

37. Mr Aljaroudi says that he has been affected by his lack of English skills and the death of two of his brother, with one brother being killed in a traffic accident on 1 January 2016, which is also the period from  which he was not enrolled.

38. Mr Aljouradi said his English was not adequate for the Diploma in Engineering so he returned to his studies in International Business to improve his skills. 

    Past and present conduct to the Department

39. Mr Aljaroudi was issued a notice of intention to cancel his visa (NOITC) on 12 September 2016 and provided a response by email on 16 and 26 September 2016, and 5 October 2016.  In his email to the Department dated 5 October 2016, Hussain Aljaroudi mentioned that he provided a letter explaining his situation and reasons for non-enrolment however this letter was not located by the Department.  The applicant was provided an extension to respond to the NOITC until 26 September 2016.  

    Mr Aljaroudi responded to the NOICC and provided information to the Department when requested.  There is no information to show that he has not complied with anything required of him by the Department.   

    Any mandatory consequences of cancelling the visa

40. If Mr Aljaroudi’s visa is cancelled, there are limited visas he can apply for from within Australia.  There is no suggestion that he would be detained or indefinitely detained if he leaves Australia within the period allowed. 

    Consequential cancellation under s.140

41. There are no secondary applicants for the visa, and the consequential cancellation provisions do not apply.

    Whether Australia would breach any international obligations in cancelling the visa

42. There is no information before me that cancelling the visa would result in a breach of Australia’s international obligations.

    Conclusion

43. Mr Aljaroudi came across as a convincing witness.  He did not try to overstate his position, for example, he readily acknowledged his difficulties with studying and that he could not provide documents to confirm his scholarship would be reinstated.  The information he provided on the scholarship program was consistent with the independent evidence of his witness and information the Tribunal obtained through its own research. 

44. In circumstances where two of his brothers have died, and the difficulty in having his scholarship reinstated if he returns to Saudi Arabia, and in light of having obtained an offer for a Bachelor Degree in Engineering, I have concluded that the visa should not be cancelled.

    DECISION

45. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Kate Millar
    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.