Bin Hadyan (Migration)

[2020] AATA 5058

Bin Hadyan (Migration) [2020] AATA 5058 (15 October 2020)

DECISION RECORD

DIVISION:		Migration & Refugee Division
APPLICANT:		Mr Bander Suliman A Bin Hadyan
CASE NUMBER:		1933484
HOME AFFAIRS REFERENCE:		BCC2019/3261914
MEMBER:		Dr Jason Harkess
DATE:		15 October 2020
PLACE OF DECISION:		Melbourne
DECISION:		The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa

Statement made on 15 October 2020 at 11:52am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) (Subclass 500) visa – not registered in approved course – alcohol abuse – accidents – genuine intention to rehabilitate – genuine desire to study – decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 116(1)(b), 140, 189, 198
Migration Regulations 1994, Condition 8202(2)(a)-(b)

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

1. The Applicant is a citizen of Saudi Arabia and is 28 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 19 November 2019 cancelling his Student (Temporary) (Class TU) Subclass 500 visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

Original Visa Grant

1. The Applicant’s visa was granted on 16 February 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]

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

2. The visa had an original expiry date of 30 August 2021 before it was cancelled. It provided for more than four years six months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study. Specifically, the visa had been granted so that the Applicant could complete a Standard Foundation Program, a Diploma of Engineering and a Bachelor of Engineering (with Honours) at Macquarie University.

Reasons for Cancellation

1. 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 certain conditions of his visa. The delegate found that the Applicant had failed to comply with that condition of the visa which required him to:

   (a)maintain enrolment in a registered course of study (Condition 8202(2)(a)); and

   (b)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 (Condition 8202(2)(b)).

2. The delegate’s reasons are set out in a decision record. That decision record was provided to the Applicant when he was notified that his visa had been cancelled on 19 November 2019.[2] By lodging his review application, the Applicant contends that the delegate’s decision to cancel his visa is neither the correct nor preferable outcome in this case.

   [2] Notification was given in accordance with s 127 of the Migration Act 1958 (Cth) and reg 2.55(3)(d)ii) of the Migration Regulations 1994 (Cth) by emailing the notification and decision record to the Applicant’s last email address known to the Minister on the date of the decision. By the operation of reg 2.55(8) of the Migration Regulations 1994 (Cth), the Applicant is taken to have received the notification and decision record on that date.

Issues for Determination by Tribunal

1. The first issue requiring consideration by the Tribunal is whether the grounds 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 those grounds are made out, the second issue requiring consideration is whether the Applicant’s visa ought to be cancelled.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the application on 31 January 2020. The Applicant appeared before the Tribunal by video link to give evidence and present arguments.

Tribunal’s Determination

1. The Tribunal has concluded that the decision to cancel the Applicant’s visa ought to be set aside. In reaching its decision, the Tribunal has had regard to:

   (a)the delegate’s decision record;

   (b)the oral evidence of the Applicant given at the hearing;

   (c)all written material filed by or on behalf of the Applicant before, during and after the hearing; and

   (d)other relevant documents on the Tribunal and Department files.

2. The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference to that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.[3]

GROUNDS FOR CANCELLATION

[3] The Tribunal notes that it is not required to make explicit reference to every piece of relevant information before it because not all relevant considerations will be material or fundamental in any given case. See Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, [30]-[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [49] (Bell, Gageler and Keane JJ); Shoukat v Minister for Home Affairs [2020] FCA 194, [25] (O’Callaghan J); Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

Applicable Law

1. 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.

2. Condition 8202(2) attaches to all student visas and creates a continuing obligation for the duration of the visa.[4] It requires the visa holder to maintain enrolment in a full-time registered course of study and maintain study at an AQF level contemplated by the visa grant.

   [4] Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a). All standard conditions of visas issued to non-citizens, including Condition 8202, are set out in full in the Migration Regulations 1994 (Cth), Sch 8.

3. The imposition of Condition 8202(2) draws attention to the fact that all student visas are issued for the specific purpose of studying on a full-time basis. 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 ceasing to be enrolled altogether or downgrading their course. In that regard, Condition 8202(2) 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)(a)?

Delegate’s Allegations

1. In 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 three courses, namely:

   (a)Standard Foundation Program – starting 20 February 2017 and ending 8 September 2017;

   (b)Diploma of Engineering – starting 23 October 2017 and ending 1 June 2018;

   (c)Bachelor of Engineering (with Honours) – starting 23 July 2018 and ending 30 June 2021.

2. Of the three courses, the Bachelor of Engineering (with Honours) course sits at the highest level on the AQF scale. Bachelor’s (Honours) degree courses sit at AQF Level 8.

3. As the delegate’s decision record notes, on 7 August 2018 the Applicant’s enrolment in the Bachelor’s (Honours) course was cancelled by the course provider.[5] The information before the delegate indicated that the Applicant did not hold a valid enrolment at the Bachelors (Honours) level, being AQF Level 8, or higher since that date up until the decision was made to cancel his visa on 19 November 2019. This effectively amounted to more than 15 months during which the Applicant was in continuous breach of Condition 8202(2)(a) and (b) of his visa.

Applicant’s Response to Allegations

[5] 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’). 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. 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].

1. On 14 October 2019 the Department of Home Affairs (‘the Department’) notified the Applicant in writing of its intention to consider cancelling his visa (‘the NOICC’). In accordance with s 119 of the Act, the NOICC:

   (a)gave particulars of the allegation that the Applicant had not complied with Condition 8202(2)(a) and (b) of his visa;

   (b)gave particulars of the information obtained from the PRISMS database that founded the allegation;

   (c)informed the Applicant that not complying with Condition 8202(2)(a) and (b) constituted grounds for cancelling his visa; and

   (d)invited the Applicant to show the Department that those grounds did not exist or that there was a reason why his visa should not be cancelled.

2. The Applicant responded to the NOICC in writing, initially 14 October 2019 and then again on 21 October 2019 by his solicitors, (collectively, ‘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

Evidence Given by Applicant at Hearing

1. At the hearing before the Tribunal on 31 January 2020, the Applicant admitted that he was in breach of Condition 8202(2)(b) of his visa for the period 7 August 2018 to 19 November 2019. However, he drew to the Tribunal’s attention, which the Tribunal accepts, that he was enrolled in a Diploma-level course in Engineering at SIBT for the brief period of 11 March 2019 to 8 August 2019. However, a Diploma-level course enrolment did not cure the Applicant’s continuous breach of Condition 8202(2)(b) which obliged him to remain enrolled in a Bachelors (Honours) course or higher.

Conclusion

1. Based on the material before the Tribunal, it is reasonably clear that the Applicant did not comply with a condition of his visa. The Tribunal finds that the Applicant did not comply with Condition 8202(2)(b) of his visa for the period 7 August 2018 to 19 November 2019. Accordingly, there are grounds for cancelling his visa under s 116(1)(b) of the Act.

CONSIDERATION OF DISCRETION TO CANCEL VISA

1. 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

1. 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’.

2. 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 (eg, 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; and

   (i)any other relevant matter.

Circumstances

1. The Applicant sought to explain the circumstances giving rise to his non-compliance with the Condition 8202 at the hearing before the Tribunal. In summary, he explained to the Tribunal as follows:

   (a)The Applicant arrived in Australia on 27 February 2017. After two months of studying at Macquarie University, he decided to change course provider to Sydney Institute of Business and Technology (‘SIBT’). He enrolled in a Diploma of Engineering at SIBT which would then lead to a Bachelor’s degree at Western Sydney University for which he had received a conditional offer.

   (b)The Applicant stated he was having difficulties with his studies at SIBT which included periods of depression. Over three semesters, he passed only three units. He said he failed one unit three times (mathematics and for engineering).

   (c)Due to his poor performance, issues arose with respect to his continued enrolment in the course. Issues also arose with respect to his financial sponsorship. He was on a scholarship that was funded by the government of his home country.

   (d)The Applicant stated that he had two accidents in 2019. The first occurred when he was surfing in April. His surfboard hit his right ribcage which caused tissue trauma. He had difficulty walking for a month. The second incident occurred while riding a motorcycle in June 2019. He broke his right leg and suffered a compound fracture. He said he was not able to walk for six months. He is now fully recovered from both injuries.

   (e)The Applicant disclosed considerable alcohol consumption and abuse which started after his arrival in Australia. The Applicant was candid in the course of giving evidence to the Tribunal about his history of alcohol abuse. When he first arrived in Australia, he started to drink heavily. He disclosed that he was caught drink-driving on 31 December 2018 and was sentenced by way of a community corrections order with 540 hours of work ordered to be completed. He said that the last time he drank alcohol was just before he had his motorcycle accident.

2. The Applicant produced to the Tribunal a number of documents that corroborated his claims in this respect. Those documents include an academic transcript relating to his studies at SIBT in 2017 and 2018, scholarship information, a conditional offer letter from Western Sydney University, medical certificates and doctor letters.

3. While the Tribunal does not accept these circumstances satisfactorily explain such a lengthy period during which the Applicant was in breach of his visa, ultimately the Tribunal accepts that a confluence of factors is likely to have been operating on the Applicant’s mind and his ability to function properly as a student. In some respects they weigh in favour of cancelling his visa. In other respects, given the apparent lessons he has learnt from them, they weigh in favour of not cancelling his visa.

Purpose of Applicant’s Stay in Australia

1. The purpose of the Applicant’s stay in Australia was to study. While that purpose was undermined as a result of his cessation of studies for a considerable period, the Tribunal is satisfied that the personal circumstances giving rise to the breach for at least some of the breach period were extenuating. The Tribunal also notes that the Applicant has expressed a desire and taken steps towards continuing with his studies. The purpose of the original visa grant can be served if he is permitted to continue on this pathway. This weighs in favour of not cancelling his visa.

Extent of Applicant’s Compliance with Visa Conditions

1. Beyond the current visa condition breach, the Tribunal is not aware of any other instances of non-compliance with this visa or previous visas held by the Applicant.

Hardship

1. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia to complete his studies. On balance, the Tribunal considers it would cause undue hardship if his visa were cancelled and he was forced to return to his home country without completing a higher education qualification. While the Tribunal is very concerned about the seriousness of his drink-driving offence, the Tribunal also accepts that there appear reasonable prospects of rehabilitation and that the Applicant genuinely wants to complete his education in Australia.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. There are no matters of concern in this respect.

Other Visa Holders

1. 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

1. 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. The Tribunal considers this consequence to be unduly harsh in the circumstances of this case.

International Obligations

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

Other Relevant Matters

1. There do not appear to be any other relevant matters material to the outcome of the present review application.

Conclusion

1. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa should not be cancelled.

DECISION

1. The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa.

Dr Jason Harkess
Member