Aloqaily (Migration)

[2020] AATA 729

Aloqaily (Migration) [2020] AATA 729 (13 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Khaled Mohammad Ahmad Sudqi Aloqaily

CASE NUMBER:  1903750

HOME AFFAIRS REFERENCE(S):          BCC2018/5318067

MEMBER:D Triaca

DATE:13 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 13 March 2020 at 3:04pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – study at lower level than visa requirement – discretion to cancel visa – factors for and against cancellation – homesickness and return home – enrolment cancelled – return to Australia – delay in issue of new confirmation of enrolment – English language study – new enrolment and current study at original level at different institution – mental health – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 2, cl 500.611(1)(a), Schedule 8, condition 8202(2)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a 24 year old citizen of Jordan. He first arrived in Australia on 27 December 2017.

   Original Visa Grant

3. The Applicant’s visa was granted on 20 December 2017. It was granted because a delegate of the Minister had determined that he met the primary criteria for the grant of a student visa[1] and enabled the applicant to reside in Australia for the purposes of full time study.

   Reasons for Cancellation

   [1] The primary criteria for the grant of student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

4. The Applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s 116(1)(b) of the Act. The delegate found that the Applicant had not complied with a condition of his visa. Specifically, the delegate found that the Applicant had failed to comply with that condition of the visa which required him to maintain enrolment in a registered course of study that, once completed, would provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted.

5. Upon making that finding, the delegate proceeded to consider all other relevant circumstances before concluding that the Applicant’s visa ought to be cancelled.

6. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Tribunal by the Applicant when he lodged his review application on 19 February 2019.

   Issues for Determination by Tribunal

7. The first issue requiring consideration by the Tribunal is whether the ground for cancellation under s 116(1)(b) of the Act is made out, namely whether the Applicant did not comply with a condition of his visa. If the Tribunal determines that ground for cancellation is made out, the second issue requiring consideration is whether the Applicant’s visa ought to be cancelled.

   Hearing of Application

8. The Tribunal convened a hearing to consider the merits of the application on 12 March 2020. The Applicant appeared before the Tribunal by video link to give evidence and present arguments.

9. The Applicant was assisted an interpreter.

   Tribunal’s Determination

10. The Tribunal has concluded that the decision to cancel the Applicant’s visa ought to be set aside in this case.

    GROUND FOR CANCELLATION

    Applicable Law

11. Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’), when the visa was granted.

12. Condition 8202(2)(b) attaches to all student visas and creates a continuing obligation for the duration of the visa.[2] It requires the visa holder to maintain enrolment in a registered course of study that, once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted.

    [2] Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a).

13. The AQF is an objective measure for categorising courses within the Australian education system. It creates a hierarchy of levels associated with all courses that are registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course and the depth of achievement and the autonomy required that successful completion of the course represents. A course that is classified as AQF Level 1 (Certificate I) has the lowest levels of course complexity, achievement depth and student autonomy. A course that sits at AQF Level 10 (Doctoral Degree) has the highest levels.[3]

    [3] The AQF is administered by the Department of Education and Training. See generally <>

    The imposition of Condition 8202(2)(b) draws attention to the fact that all student visas are issued for a specific kind of study purpose that is tailored to the particular visa holder. The visa holder is legally obliged to adhere to that study purpose for the duration of their stay in Australia. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason for changing their course of study, they are specifically prohibited from ‘downgrading’ to a simpler course. In that regard, Condition 8202(2)(b) is one of many student visa conditions designed to ensure that Australia’s student visa program is not abused.

    Has the Applicant Failed to Comply with Condition 8202(2)(b)?

    Delegate’s Allegations and Findings

14. As the delegate’s decision record notes, the Applicant’s visa was originally granted on the basis that the Applicant was enrolled in, and would successfully complete, an English for Technical and Further Academic Purposes Course leading to a Master of Business at the University of Wollongong. The English course was to commence on 5 February 2018 and finish on 22 June 2018. The Bachelor of Business was to follow the English course, with a course commencement date of 20 August 2018 and conclude on 31 December 2019. The Bachelor’s course was to be undertaken at University of Wollongong. The Bachelor’s course, being the higher-level course of the two courses for which the visa was granted, sits at AQF Level 7.

15. As the delegate’s decision record further notes, on 29 January 2018 the Applicant’s enrolment in both courses was cancelled by the course provider. The delegate’s findings were based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[4] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued.

    [4] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

16. The delegate found that the Applicant had breached Condition 8202(2)(b) of his visa because he had downgraded his enrolment from an AQF Level 7 course to an AQF Level 5 course.

17. Applicant’s Response to Allegations

18. The Department of Home Affairs (‘the Department’) wrote to the Applicant by letter dated 1 February 2019, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). The NOICC set out particulars of the matters that have been summarised above and put the Applicant on notice that the Department was concerned that he may be in breach of Condition 8202 of his visa. The Applicant was invited to comment on these concerns before the Department determined whether his visa should be cancelled.

19. The Applicant responded to the NOICC in writing on 5 February 2019 (‘the Applicant’s NOICC response’). In that response, the Applicant did not dispute that he was in breach of Condition 8202 of his visa as alleged, although he sought to explain the circumstances giving rise to the breach.

20. At the hearing before the Tribunal on 12 March 2020, the applicant admitted that his enrolment was cancelled in January 2018 and, as such, he had not maintained his enrolment in a course at the requisite level. The applicant admitted that this amounted to a breach of Condition 8202(2)(b) of his visa.

    Conclusion

21. Based on the evidence before the Tribunal, it is reasonably clear that the Applicant was in breach of his visa as alleged by the delegate. The Tribunal finds that the Applicant did not comply with Condition 8202(2)(b) of his visa.

    Consideration of discretion to cancel visa

22. Having found that the Applicant failed to comply with a condition of his visa, the Tribunal must proceed to consider whether his visa should be cancelled.

    Relevant Factors

23. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

24. The matters that ought to be considered are specifically listed in PAM3 as follows:

    (a)    the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

    (b)    the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

    (c)    the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

    (d)    the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

    (e)    the Applicant’s past and present behaviour towards the Department (e.g. whether they have been truthful and co-operative in their dealings with the Department);

    (f)    whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

    (g)    whether there are mandatory legal consequences arising from a decision to cancel the visa;

    (h)    whether Australia has obligations under any relevant international agreements that would be breached as a result.

    Applicant’s Evidence.

25. The applicant’s evidence is as follows:

    (a)He arrived in Australia on 27 December 2017 intending to study English, leading to a Master’s degree. He holds a Bachelor’s degree from Jordan.

    (b)Within 3 weeks he had become homesick anxious about being in Australia. He returned to Jordan on 16 January 2018. He contacted the University and advised he would not be continuing with his studies and requested his fees be refunded.

    (c)His enrolment in the relevant courses was cancelled approximately 2 weeks later.

    (d)Following discussions with his family, and considering his future, the applicant returned to Australia in May 2018 intending to return to his studies.

    (e)The applicant found he was unable to immediately commence studying and his course provider required that he wait a further six months until he was could obtain a new Confirmation of Enrolment. He found that PRISMS is not able to issue a new COE to a student for a 6 month period if a student has had a COE cancelled within a specified timeframe by the original course provider. It was submitted on his behalf that he was effectively locked out of studying for a period of 6 months.

    (f)He was eventually granted a new Confirmation of Enrolment to commence studying General English classes at Australian Management Skills Pty Ltd on 22 January 2019.

    (g)He states that when he arrived in Australia he had misjudged the level of English necessary to study in Australia. Whilst he had learned English in Jordan, he found he was a long way from being competent. He spent 2019 studying English in Australia and believes that he has now improved sufficiently to enable him to study.

    (h)Late in 2019, the applicant sought migration advice and began seeking enrolment into a Master’s program.

    (i)At the hearing of the application, the applicant provided the Tribunal with a CoE for General English at Global English College and a Master of Business Information Systems at Torrens University due to commence on 17 February 2020 and an offer from Torrens University.

    (j)He confirmed that he had accepted the offer, started classes and this acceptance is evidenced by the issue of the CoE by the University. The applicant also produced a signed copy of the offer document which he had signed along with the Vice Chancellor of Business and Hospitality at the University.

    (k)The applicant also advised that he had paid $6,400 to the University being the first instalment of fees and produced confirmation from the University that this had been paid.

    (l)He says he has family financial support to enable him to pay for his tuition in Australia.

    (m)He stated he has experienced mental health issues in the past. This is supported by a number of medical certificates that confirm he has sought treatment in relation to depression and anxiety. He says that his issues now stabilised and he is able to study.

    Purpose of the Applicant’s Stay in Australia.

26. The Tribunal accepts that the applicant arrived in Australia intending to study and he enrolled in registered courses upon his arrival.

27. Shortly thereafter his purpose ceased to be studying and he returned home. The Tribunal does not consider that this change of purpose ought to adversely affect the application as he returned home for a period of approximately 4 months when he was not studying, so he was not actually in Australia during the period that he was no studying.

28. Upon his return he was unable to study for a period of 6 months. I accept his evidence that he returned to Australia with the intention of studying and was not aware he would be unable to do so. It may be fair criticism of the applicant that he did not return to Jordan during that 6 month period. However, due to the fact did resolve the situation and return to study in 2019 I do not consider this 6 month period of non-compliance to be fatal to the application.

29. In 2019 he did study and this suggests that his purpose was to study during that time.

30. He is currently enrolled in a Master’s course and has commenced studying. Accordingly, I find that his current purpose is to study.

31. This is not a situation where the applicant’s breach arose due to matters outside his control. To the contrary, the decision to leave Australia and stop studying in January 2018 was clearly a matter that was the applicant’s. However, I accept the applicant’s evidence that after only 3 weeks in Australia he made a spontaneous, perhaps rash, decision to return home and this decision had consequences for his future studying path.

32. The question for the Tribunal is whether the applicant’s subsequent conduct is of such a nature that he ought to be afforded a second opportunity to complete his Masters course. I consider that he should be given the opportunity to do so. He has a Bachelor’s Degree so a Master’s Degree is consistent with his previous studies. He has accepted the University offer, commenced studying and paid fees which is an indication that he is a genuine student. I also take into account his relative youth at the time he returned home to Jordan, and the fact that he was away from home and unable to speak the language at the relevant time. Whilst enrolling in the Master’s course does not cure the breach, it goes some way toward restoring the purpose of the applicant’s visa. These matters weigh against cancellation of the visa.   

    Circumstances Giving Rise to Ground for Cancellation

33. The circumstances of the breach are set out above. The question is how much weight to place on the fact of the breach itself, weight against the other evidence in favour of the applicant. I consider that the applicant’s decision to leave Australia was ill considered. His evidence is that he advised the University that he was not going to commence studying and returned home. It does not appear he really considered the prospect that he may wish to return to Australia and study. This question rests on the issue of whether or not the applicant ought to be given a second opportunity. 

34. I also take into account the applicant’s depression and anxiety issues. The applicant produced evidence that he had sought treatment in relation to these issues. The evidence does not allow a specific finding that the breach was caused by underlying mental health issues. However, it is reasonable to assume that these issues may have had some bearing on the applicant’s sudden decision to leave Australia.

    Extent of Applicant’s Compliance with Visa Conditions

35. The applicant appears to have complied with visa conditions other than the alleged breach of condition 8202(2)(b).

    Hardship

36. The applicant will suffer some hardship if he is to return to Jordan without completing what he started. The Tribunal accepts eh will face some degree of emotional hardship and disappointment if his visa is cancelled and he is forced to return home. The applicant says his family will be disappointed and he will find it difficult. The Tribunal accepts his evidence.

    Applicant’s Behaviour towards Department

37. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. There is no adverse evidence before the Tribunal in that regard.

    Other Visa Holders

38. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

    Legal Consequences

39. The Tribunal notes that if his visa is cancelled, 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. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of a visa condition.

40. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of Jordan and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

    International Obligations

1. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

   Conclusion.

2. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be set aside

   DECISION

3. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

   D Triaca
   
   

   Member

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

   (a)a Defence student; or

   (b)     a Foreign Affairs student; or

   (c)      a secondary exchange student.

   (2) A holder not covered by subclause (1):

   (a)      must be enrolled in a full time registered course; and

   (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

   (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

   (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

   (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

   (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

   (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

   (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.