Arab (Migration)

[2018] AATA 1182

Arab (Migration) [2018] AATA 1182 (9 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wael Arab

CASE NUMBER:  1615678

DIBP REFERENCE(S):  BCC2016/2804085

MEMBER:Mr S Norman

DATE:9 March 2018  

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 09 March 2018 at 1:32pm

CATCHWORDS
Migration – Cancellation - Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether the applicant was enrolled in a registered course – Applicant not enrolled in a registered course for a duration – Consideration of discretion to cancel – Genuine mistake - Failure to provide requested evidence to Tribunal

LEGISLATION
Migration Act 1958, ss 48, 116(1)(b), 189, 198
Migration Regulations 1994, Schedule 4, PIC 4013, Schedule 8, Condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 September 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act). The Department decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant had breached condition 8202(2) – enrolment. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 9 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

4. The applicant was represented in relation to the review 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 affirmed.

   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. Relevantly, it requires that the applicant:

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider,  as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. On 12 May 2014, the applicant had been granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 5 September 2016, the applicant was advised that evidence on the Provider Registration and International Student Management System (PRISMS) indicated that he had not been enrolled in a registered course of study between 18 March 2016 and 4 September 2016. It therefore appeared the applicant did not meet the requirement of condition 8202(2)(a). Further, that if he did not meet this condition his visa may be cancelled under s.116(1)(b) of the Act.

9. In the applicant’s response of 5 September 2016, it was not disputed that there were grounds for cancellation of the visa.

10. Given the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

11. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa. 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).

12. Regarding the purpose of the applicant’s travel to and stay in Australia, the Student visa is granted so that a student can undertake a registered course of study. The Tribunal notes the applicant has completed two English language courses, two Certificate IV in Accounting (at hearing the applicant explained this course had been extended by the education provider), and a Diploma of Accounting. Also, since December 2016, the applicant had studied for a Bachelor of Commerce at the Torrens University in Sydney. Based on the evidence before the Tribunal, I am satisfied the applicant’s intention in travelling to and staying in Australia was for the purposes of study.

13. Regarding the extent of the applicant’s compliance with any conditions to which his visa was granted, the Tribunal notes that he failed to maintain enrolment in a registered course of study with no more than a two month gap (between 18 March 2016 and 4 September 2016).

14. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, the Tribunal accepts the applicant may be caused some financial hardship if his visa is cancelled. At hearing he explained that his parents had paid for him and his sister to travel to and reside in Australia at the same time. He said his parents would not continue to assist to pay for his studies if his visa was cancelled (including if he returned to Lebanon). He also said he presently lives with his sister in Sydney (though her Student visa is independent of the applicants). He said that his sister would have some difficulties continuing to reside in Australia without the care of the applicant (the applicant said he had another brother in Sydney but he is married and lives separately to him and his sister). That being said, the Tribunal accepts that if the applicant’s visa is cancelled, he and his parents would suffer some financial or other hardship; and that his sister may suffer some hardship for the reasons claimed.  The applicant also advised the Tribunal he had a fiancé (or at least a partner) in Australia.

15. Next, if his visa is cancelled the applicant would also become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention. Further, I am satisfied the applicant could apply for a Bridging visa and be allowed to remain in the community to finalise his affairs prior to departing.

16. Next, there is no evidence before the Tribunal that any family members or persons in Australia would have their own visas cancelled by the cancellation of the applicant’s visa.

17. Regarding the circumstances in which the ground for cancellation arose, this was due to the applicant failing to maintain enrolment in a registered course of study. The evidence for same is on file; however, the applicant explained (by way of written migration submissions and orally at hearing), that there had been some confusion as to whether he was enrolled (the applicant understood he was enrolled in a registered course appropriate for the Higher Education Student visa he was granted). In 2016, the applicant had cancelled a degree course at Canberra University (as he wished to remain living in Sydney with his sister[1]); and he commenced a degree course in Torrens University in Sydney (which course he commenced in December 2016). After having discussed the applicant’s claims at hearing, his oral evidence about the ‘confusion’ (which was materially corroborated by the written submissions of his migration agent), and the fact of his detailed and ready presentation of those claims, this ultimately satisfied the Tribunal that he was recalling evidence within his personal experience. At hearing, the Tribunal explained to him that irrespective of whether his education agent erred (as was claimed), the applicant was still responsible for ensuring the criteria for his visa were met. Be that as it may, the Tribunal accepts there was some confusion and the applicant (incorrectly) believed he had remained enrolled in a registered course appropriate to the Student visa he had been granted.

    [1] Migration agent submissions 8 February 2018.

18. Regarding the applicant’s past and present behaviour towards the Department, there is no evidence that he has been uncooperative with either the Department or the Tribunal. Regarding any legal consequences of the decision to cancel a visa, the Tribunal notes the applicant would be subject to s.48 of the Act which means that he would have limited options for applying for further visas in Australia. He would also be subject to Public Interest Criterion 4013, meaning he may not be granted a temporary visa for three years from the date of cancellation.

19. Based on the evidence before it, the Tribunal is not satisfied that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

20. As noted herein, the applicant commenced a (Bachelor of Commerce) degree at Torrens University on 5 December 2016 (and the Tribunal hearing was held on 9 February 2018). The Tribunal suggested a statement of attainment (detailing academic progress) and a statement of attendance (from the Torrens University) may assist the applicant’s case. The Tribunal agreed not to finalise a decision prior to COB 22 February 2018 (though the Tribunal agreed to consider extending the time to finalise its decision if same was requested and reasonable grounds were provided). The Tribunal also said if the further evidence appeared reasonable, this should have a positive impact on the outcome of the applicant’s merits review application. If the evidence provided did not appear reasonable (ie unsatisfactory attendance or academic progress), then submissions about same should also be lodged with the Tribunal at the same time.

21. By migration email of 23 February 2018, a request was made for an extension of time “of 10 business days as of Wednesday the 21^st of February to submit the documents requested from [the applicant], consisting of attendance and performance records”. By email of 23 February 2018, the Tribunal advised that it would “grant an extension of time until 8 March 2018”. However, as at the date and time of this decision, no further evidence or submissions have been received by, or on behalf of, the applicant.

22. That being said, the Tribunal notes the applicant’s evidence about his parents’ financial contributions for him, the impact the cancellation of his Student visa may have on him and his sister, and the other matters herein. Even if true, the lack of any material response to the Tribunal’s suggestion that a statement of attainment and attendance from the Torrens University could assist his case, has weighed heavily against the applicant.

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

    DECISION

24. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Mr S Norman
    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.