El Chaar (Migration)

El Chaar (Migration) [2019] AATA 5442 (25 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Moustafa El Chaar
CASE NUMBER:  1908803
HOME AFFAIRS REFERENCE(S):          BCC2019/136299
MEMBER:T. Quinn
DATE:25 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 25 November 2019 at 2:07pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – purpose of stay in Australia – responsibility to comply with visa conditions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 2 April 2019 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass 500 (Student) visa (‘the current visa’) under section 116(1)(b) of the Migration Act 1958 (‘the Act’).
The applicant was granted the current visa on 5 May 2017.[1] The applicant is from Lebanon and initially came to Australia with the intention to study English for Academic Purposes and a Bachelor of Business (Sports Management);[2] however, it appears his intention has now changed (as outlined below).
[1] See delegate’s decision.
[2] See delegate’s decision.
On 15 March 2019, the delegate sent the applicant a Notice of Intention to Consider Cancellation (‘NOICC’) on the basis that the applicant had failed to comply with a condition of the current visa as required by subsection 116(1)(b) of the Act, namely that since 15 March 2018, the applicant had failed to maintain enrolment in a registered course that, once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that was at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. [3]
[3] As required by condition 8202(2)(b) of the Migration Regulations 1994 (‘the Regulations’).
On 22 March 2019, the applicant responded to the NOICC.
On 2 April 2019, the delegate cancelled the current visa on the basis that the applicant had failed to comply with a condition of the current visa as required by subsection 116(1)(b) of the Act, namely that the applicant had breached subclause 2(b) of condition 8202 of his visa in that he failed to maintain enrolment in a registered course that, once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that was at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. [4] The applicant did not comply with this condition of his visa from 15 March 2018 to 2 April 2019.[5] A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
[4] As required by condition 8202(2)(b) of the Migration Regulations 1994 (‘the Regulations’).
[5] See delegate’s decision.
On 10 April 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(3) and 347 of the Act.
The applicant appeared before the Tribunal on 18 November 2019 to give evidence and present arguments.
The applicant was assisted in relation to the review by their registered migration agent.
The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
The Tribunal has had regard to all the information before it, including the Department File, all information and evidence provided by the applicant to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
STATUTORY FRAMEWORK
The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.
Under section 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 subsection 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the ground for cancellation exist?
A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:
a.be enrolled in a registered course, or in limited cases, a full time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (2);
b.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i); and
c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course at the required AQF level.
The applicant was enrolled in a Bachelor of Business (Sports Management) at AQF level 7. This enrolment was cancelled on 15 March 2018 and the applicant has not been enrolled in a full time registered course of study at AQF level 7 or above since that time.
The applicant has acknowledged and accepted that there are grounds for cancellation.
For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion to cancel the visa
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’.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
Prior to his arrival in Australia, the applicant gave evidence that he completed high school equivalent in Lebanon followed by an eight month English course and a period working and helping in his family’s restaurant business. He gave evidence and made submissions that his initial arrival in Australia was to undertake a Bachelor of Business (Sports Management) but that his English level was not adequate to commence the Bachelor of Business as planned in February 2018 and he was advised by his course provider to undertake further English courses and a vocational sector course. His agent made submissions that this was unfortunate and that this advice may have been given without the realisation that such a change would be in breach of the applicant’s visa conditions. The Tribunal accepts this evidence.
The applicant then undertook one English course from July to October 2017, a further English course from November 2017 to April 2018. The applicant’s study history from April 2018 was not clear to the Tribunal hearing and, upon questioning, the applicant was unable to provide a clear response to the Tribunal about what study he had undertaken since that time. The applicant has filed two confirmation of enrolment documents for an Advanced Diploma of Business: one with a course duration from May 2018 to April 2019 and one with a course duration from May 2019 to May 2020. It appears from the applicant’s evidence at hearing that he was not satisfied with the course provider of these courses; he attended classes but did not complete any courses. The applicant filed a certificate for a Diploma of Leadership and Management dated 20 May 2019 but all subjects were completed on the basis of recognition of prior learning and therefore do not necessarily reflect any actual study undertaken by the applicant as such recognition can also be on the basis of work experience and the applicant has not supplied any confirmation of enrolment for that course with a completion date in May 2019. The applicant has filed two further confirmations of enrolments: one for a Diploma of Leadership and Management with a course duration from August 2019 to August 2020 and one for an Advanced Diploma of Leadership and Management from August 2020 to August 2021. The applicant gave evidence that he attends classes for a Diploma of Leadership and Management on Tuesday and Thursday. The Tribunal was considerably troubled by this evidence as the applicant already holds a certificate for a Diploma of Leadership and Management. When asked about this, the applicant’s evidence was that he had been advised to undertake this course and his agent enrolled him in it. The Tribunal finds it difficult to accept that an individual who states that they wish to remain onshore to progress their education would undertake a course which they already hold a certificate for. It appears to the Tribunal that the enrolment in this course has been taken in order to meet the enrolment condition of a student visa and maintain residence onshore, not for genuine academic progression. This raises concerns for the Tribunal about the applicant’s true intentions onshore.
Of further concern to the Tribunal is the letter of offer for a Bachelor of Commerce dated 12 November 2019 and provided to the Tribunal on the morning of the applicant’s hearing. This letter refers to an offer to complete a Bachelor of Commerce with a course commencement date of June 2020. This date precedes the applicant even finishing the Diploma of Leadership and Management which he states he has been studying since August 2019 (and is not due to be finished until August 2020) and when asked what he intends to do upon completion of the Diploma of Leadership and Management, the applicant stated he will commence and complete the Advanced Diploma of Leadership and Management which renders the letter of offer for the Bachelor of Commerce irrelevant. The Tribunal is puzzled by this and concerned that the applicant has obtained this document for the purposes of his hearing before the Tribunal and not with a genuine intention to undertake this course.
When asked why he changed from a Diploma of Business to a Diploma of Leadership and Management, the applicant stated he considered it would be better for him in the future. When asked why he changed from seeking enrolment in a Bachelor of Business (Sports Management) to a Bachelor of Commerce, he stated he just wanted to change. When asked what the purpose of his study in Australia was he stated he wanted to be a manager, when asked what he would like to manage the applicant stated ‘the economy’. The Tribunal clarified this response and the applicant reiterated his intention was to be a manager of the economy.
Taken as a whole, the applicant’s evidence raised serious concerns for the Tribunal about the true nature of his intentions onshore. It is not consistent with behaviour of a genuine student
The Tribunal gave the applicant until close of business two days after his hearing to supply documents from a course provider which indicate what study he has actually undertaken since April 2018. The applicant has filed copies of payment receipts with the Tribunal indicating he made payments to Academy of Entrepreneurs in May, September and November 2018 and March and June 2019. The Tribunal accepts that the applicant was making payments to a course provider but also notes that, if he was studying during this considerable period of time, he has not received any certificate to reflect this and provided no statement of attainment or similar documentary evidence to demonstrate his ongoing engagement with his study.
Of further concern for the Tribunal is the fact that the applicant has downgraded from a Bachelor level course to an Advanced Diploma and, even further, to the Diploma level course which he is now undertaking and which appears to be a repetition of a certificate he has already obtained in any case.
The applicant also filed after hearing a new letter of offer from his course provider for a Bachelor of Commerce which does not commence until after completion of the proposed Advanced Diploma of Leadership and Management, in September 2020 wish a finish date in August 2023. It raises concerns for the Tribunal that the applicant has filed multiple letters of offer for Bachelor level courses which have the appearance of being obtained in order to assist in the applicant’s proceeding, rather than being motivated by a genuine desire to study.
The applicant’s migration agent also filed written submissions referring to a Bachelor of Economics in preference to a Bachelor of Business program. However, the letter of offers supplied on the day of hearing and then again with new course dates two days later are both for a Bachelor of Commerce, not Economics, and whilst the Tribunal is aware that Economics is a possible major with a Bachelor of Commerce degree, the lack of clarity surrounding the very course that the applicant was granted the visa to undertake is of serious concern for the Tribunal. These submissions go on to state that the applicant meant to state that he enjoys mathematics and has chosen a different tertiary course to focus on this and that his long term career goal is to be a manager in the banking or investing sector in Lebanon. The applicant was given ample opportunity to state this in his hearing and it was not his evidence. Of greater concern is the fact that the applicant is studying a significantly lower level course than that for which he was granted the visa and which he already holds a certificate for, with an intention to undertake a second course at a lower level than that for which he was granted the visa and does not actually intend to pursue a tertiary level course until September 2020, a period of in excess of three years since his initial visa grant to undertake such course.
Given the lack of clarity surrounding, and delay in any intention to undertake, the proposed tertiary studies and the applicant’s career goal, it is difficult to conclude that there is a compelling need for the applicant to remain in Australia, particularly in circumstances where he is currently engaging with a course he already holds a certificate for.
The Tribunal understands that a visa cancellation can be disappointing for visa holders and their families but does not consider this constitutes a compelling need to remain in Australia. Further, whilst the Tribunal accepts that the applicant received problematic advice from his initial course provider, it also notes that the applicant has been onshore for in excess of three years and has had ample opportunity to engage with a Bachelor level course and will have options to complete further studies in Lebanon if he chooses. Further, it is a visa holder’s responsibility to ensure they are complying with their visa conditions at all times, even in circumstances where a course provider may have given misleading advice.
The Tribunal considers the applicant does not have any compelling need to remain in Australia as he could study a Bachelor course in his home country. The Tribunal considers the evidence in favour of cancelling the applicant’s visa is greater than the evidence against cancelling the applicant’s visa in the matters described in paragraphs 21-32.
Circumstances in which ground of cancellation arose
The applicant’s submissions and evidence at hearing was that his English level was not adequate to commence the Bachelor of Business as planned in February 2018 and he was advised by his course provider to undertake further English courses and a vocational sector course. The Tribunal accepts this evidence but also considers that it was the applicant’s responsibility to ensure he was complying with his visa conditions at all times and that at no stage since his initial breach has he actually complied with this condition. The letters of offer provided by the applicant are not actual confirmations of enrolments.
Whilst it is unfortunate that the applicant’s English level was not adequate to commence his proposed tertiary studies, the action the applicant he took in response to this circumstance was within his control and it was this action which caused the breach.
The Tribunal empathises with the applicant but the option to return to Lebanon and/or seeking more formal advice to ensure he maintained enrolment in a tertiary level course while improving his English standard to avoid breaching his visa conditions was open to the applicant at all times.
The Tribunal considers that if an applicant is not in a position to comply with the conditions of their visa, it is their responsibility to take appropriate action to avoid breach of same. Whilst the Tribunal also acknowledges the applicant’s submissions that he received misguided advice, it is the responsibility of a visa holder to ensure they are complying with the conditions of their visa. The Tribunal gives equal weight in favour and against cancelling the applicant’s visa in this regard
Extent of compliance with visa conditions
The Tribunal notes the applicant’s evidence that he has otherwise complied with student visa conditions. However, the breach of the condition associated with the current visa is extensive, being eleven months. The Tribunal considers the eleven month breach a significant breach and gives weight in favour of cancelling the applicant’s visa in this regard.
The degree of hardship that may be caused to the visa holder and any family members
When asked about this factor, the applicant stated that if his visa is cancelled, he knows he has rights of appeal. Such an approach to this question raised concerns for the Tribunal about the nature of the applicant’s motivations in relation to seeking a student visa. The applicant went on to say he would have to return to Lebanon and start all over again and that he does not know what will happen with his future and that he will face many, many difficulties. He stated he really wanted to further his education in Australia and obtain certificates to be able to work in Lebanon.
The Tribunal accepts that the cancellation of a visa is disappointing. It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.
The Tribunal recognises that the hardship is felt by family members who may also feel let down and disappointed.
The Tribunal is, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition. Whilst appreciating the hardship the applicant and his family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.
The visa holder’s past and present behaviour towards the Department

There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department. Overall, the Tribunal considers the applicant’s behaviour warrants some weight against cancelling the applicant’s visa.
Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act
This is not relevant to the applicant.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the current visa is cancelled, this will result in the following:
a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;
b.the applicant will have limited options to apply for further visas in Australia;
c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.
The Tribunal gives little weight to this consideration in favour of the applicant because:
·these are the intended consequences of the legislation when a visa is cancelled under these grounds;
·it reflects the seriousness with which the Department takes this type of cancellation ground;
·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.
Australia’s international obligations
There is nothing before the Tribunal to suggest that the cancellation of the current visa would breach any international obligations. The Tribunal places no weight on this in favour of or against the applicant.
Any other relevant matters
Nil.
CONCLUSION
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
T. Quinn
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.

[2019] AATA 5442

25 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention

Jurisdiction