ALTHEFAIRI (Migration)

[2019] AATA 2836

ALTHEFAIRI (Migration) [2019] AATA 2836 (7 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SAAD ALTHEFAIRI

CASE NUMBER:  1708459

HOME AFFAIRS REFERENCE(S):           BCC2017/730361

MEMBER:Mr S Norman

DATE:7 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 07 June 2019 at 11:50am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – failure to attend scheduled hearing – ground for cancellation – continue satisfaction of primary criteria – ceased to be enrolled in a Higher Education Sector course – consideration of discretion – pathway leading to a bachelor’s degree – honest mistake – responsibility to comply with visa conditions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B
Migration Regulations 1994 (Cth), Schedule 8, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 April 2017 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 Department delegate’s decision was not lodged with the Tribunal. The delegate cancelled the visa under s.116(1)(b) of the Act, on the basis that the applicant was found to have breached condition 8516. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

2. By letter dated 15 April 2019 (dispatched by email), the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but that it was unable to make a favourable decision on this information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 7 June 2019 (and he was requested to arrive 15 minutes before the scheduled 10.00am hearing start time). The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The Tribunal also sent the applicant two SMS hearing reminder texts shortly prior to the hearing (at the time and date of this decision, the first SMS text was recorded as ‘Delivery of SMS hearing reminder failed’).   

3. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. Neither did he otherwise reply to the Tribunal’s hearing invitation letter (as he was invited). In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

4. 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

5. 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) of the Act. 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?

6. 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. This condition requires:

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

7. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 9 January 2013. By Notice of Intention to Consider Cancellation (NOICC) of that Student visa dated 23 March 2017, the applicant was advised that consideration was being given to cancel his Student visa. By letter of 19 April 2017,[1] the applicant advised the Tribunal that his visa was cancelled due to his enrolment in a Bachelor of Engineering being cancelled on 17 March 2016; and given that he was not enrolled in a course of study that is a principal course of a type specified for Subclass 573 (Higher Education) Student visas.

   [1] Tribunal – folio 8.

8. On 28 March 2017, the applicant also responded to the NOICC. However, he did not accept there were grounds to cancel his visa.[2]  He claimed he was “under the impression that he was studying a pathway leading to a Bachelor of Computer Engineering at Macquarie University”. He referred to “receiving a notice of deferral rejection in March 2016 from SIBT relating to his bachelors but he interpreted this as a mere rejection of deferral rather than cancelling his offer altogether at Macquarie University”. He believes this was an honest mistake on his part and requested his visa be reinstated.

   [2] Department – folio 35.

9. The Department delegate subsequently cancelled the applicant’s Student visa on 12 April 2017 (for breaching condition 8516) and the applicant then sought merits review with the Tribunal on 26 April 2017.

10. Based on that evidence which is before the Tribunal, and given the applicant’s apparent concession, I am satisfied the ground for cancellation in s.116(1)(b) of the Act, 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

11. 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’.

12. Regarding the purpose of the applicant’s travel to and stay in Australia, he was granted the Student visa to progress to studying a Bachelor of Computer Science at the University of Wollongong. Based on the evidence lodged by the applicant, the Tribunal notes that in 2017, the applicant was claimed to be studying a Diploma of Engineering.[3] However, the Tribunal notes the applicant was therefore still studying a vocational level course some four years after the grant of his Higher Education Student visa. After then considering all the evidence herein, the Tribunal is not satisfied the applicant’s intention is to remain in Australia, for the purposes of study at the Higher Education level.

    [3] Tribunal – from folio 13.

13. Regarding the degree of hardship that may be suffered by the applicant or his family if his visa is cancelled, the applicant did not refer to any material hardship in his response to the NOICC. However, the Tribunal proposes to accept that either the applicant or his family may suffer some limited hardship if his Student visa is cancelled. For instance, and amongst other things, it may be that the applicant’s career aspirations could be impeded.  

14. Regarding the circumstances which gave rise to the grounds for cancellation, this was due to the applicant breaching condition 8516. However, and as noted above, on 28 March 2017 the applicant responded to the NOICC.[4] He claimed he was “under the impression that he was studying a pathway leading to a Bachelor of Computer Engineering at Macquarie University”. He referred to “receiving a notice of deferral rejection in March 2016 from SIBT relating to his bachelors but he interpreted this as a mere rejection of deferral rather than cancelling his offer altogether at Macquarie University”. He believes this was an honest mistake on his part and requested his visa be reinstated. The Tribunal accepts that students may choose to vary their initially proposed study plans. However, they must still ensure they maintain enrolment in a registered course of study in the period they hold the Higher Education Student visa. The present applicant had failed to do this.

    [4] Department – folio 35.

15. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. Regarding the extent of compliance with visa conditions, the applicant has not complied with condition 8516 of his visa. The Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled. The Tribunal has no evidence which has satisfied it the applicant has a compelling need to travel to and reside in Australia.

16. Next, if the applicant’s Student visa is cancelled he would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, there is no evidence before the Tribunal that has satisfied me the applicant would be subject to indefinite detention. Further, after considering the evidence the Tribunal is satisfied the applicant could temporarily retain his Bridging visa in order to remain in the community to organise his affairs prior to departing Australia.

17. The Tribunal also notes that if the applicant’s Student visa is cancelled he would be subject to s.48 of the Act, and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation (being three years from 12 April 2017).   

18. The Tribunal also notes that by letter of 13 April 2017 from the Embassy of the State of Kuwait, the Cultural Office Canberra (and the Tribunal confirmed this letter was legitimate[5]), it was claimed the applicant is “sponsored for his studies at Sydney Institute of Business and Technology and is fully supported financially by the KCO”.[6] Be that as it may, the Tribunal has no evidence the applicant has progressed with his proposed study in Australia, except at the vocational level.

    [5] Tribunal – folio 26.

    [6] Department – folio 36.

19. After then considering all the accepted evidence herein, the Tribunal is satisfied it should exercise the discretion to cancel the applicant’s Student visa.

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

    DECISION

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

    Mr S Norman
    Member