El Samad (Migration)

El Samad (Migration) [2020] AATA 1559 (30 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mahmoud El Samad
CASE NUMBER:  1805890
HOME AFFAIRS REFERENCE(S):          BCC2017/3608928
MEMBER:Stephen Conwell
DATE:30 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 30 April 2020 at 12:27pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – running a business as well as studying – pressure on finances and physical and mental health – enrolment cancelled – enrolment lower-level course – no approach to education provider or department – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
CASE
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 27 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the delegate was satisfied the applicant failed to comply with visa condition 8202, namely, the applicant was not enrolled in a registered course of study at the time of the decision. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal by video-link on 3 March 2020 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.
At hearing the applicant was granted additional time in which to make further submissions and provide evidence. By email of 10 March 2020 the applicant’s representative provided a written submission to the Tribunal.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The applicant was already in Australia when he was granted a Student visa (Temporary) (Class TU) Higher Education Sector (Subclass 573) on 27 May 2016 to enrol in a Bachelor of Business. According to Provider Registration and International Student Management System (PRISMS), some 10 months after he was granted the Student visa his enrolment was cancelled on 19 April 2017.
By Notice of Intention to Consider Cancellation (NOICC) dated 1 December 2017, the applicant was advised by the Department that information on (PRISMS) indicated he had not been enrolled in his Bachelor course since 19 April 2017. The applicant was advised it appeared he was in breach of condition 8202(2)(a) – and that his visa may be cancelled under s.116(1)(b) of the Act.
The applicant provided a written response to the NOICC on 8 December 2017 in which he did not dispute there were grounds for cancelling his visa however he offered the following reasons as to why his Student visa should not be cancelled:
·in June 2016, despite being in Australia for the purposes of study he decided to purchase a small convenience store with money borrowed from his family overseas;
·the store was not financially viable and he had to borrow more money from friends and family to cover the costs. He claims that he was deceived into entering the business transaction;
·the loss-making store and his study costs were an immense pressure on his and his family’s finances and the pressure caused him to fall into depression. He was advised by friends to seek medical help regards to his deteriorating health and depression, however he did not see a doctor;
·when his health improved he went to the university to register to continue his course but he was told his COE was cancelled, however he was not given the opportunity to explain his situation with them.;
·he has since consulted a doctor who referred him to a psychiatrist;
·he is now registered at Pacific college and was attending classes.
·he hopes to be given the opportunity to complete his qualification.
After consideration of all the evidence the delegate concluded that that there was a ground for cancelling the applicant’s Student visa and proceeded to cancel the visa.
In his oral evidence at hearing, the applicant accepted he did not complete the bachelor course and that his enrolment in the course was cancelled on 19 April 2017.
According to the evidence, the applicant was not enrolled in a registered course of study between 19 April 2017 and 7 December 2017.
The Tribunal has reviewed the evidence available to it including the documents provided by the applicant with his application for review and the post-hearing submission received on 10 March 2020. The applicant has provided no evidence or argument to suggest that he was or had been enrolled in a registered course from 19 April 2017 – 7 December 2017, this being the date when the applicant enrolled in an Advanced Diploma of Leadership and Management course. On the evidence before the Tribunal finds the applicant was not enrolled in a registered during this period and has not complied with condition 8202(2). The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a registered course (per Liu v MIMIA [2003] FCA 1170).
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As the ground does not require mandatory cancellation under s.116(3) the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.
Consideration of the discretion to cancel the visa
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 the material evidence available to it as to why the visa should not be cancelled, and government policy guidelines contained 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
The applicant acknowledges that although he was already in Australia he was granted a TU 573 Higher Education visa in order to study towards a Bachelor of Business via a package of courses. The applicant confirmed that he had not been enrolled in a registered course of study from 19 April 2017 – 7 December 2017.This is an indication the applicant was not pursuing the purpose of his Student visa as he was not actively engaged in studies for a period of non-enrolment exceeding seven months.
The visa holder remained onshore for an extended period of time, for purposes other than to undertake study and achieve an educational qualification. This is not consistent with the Student visa program. The Tribunal considers the breach to be significant, given the length of time in which the applicant failed to maintain enrolment. The Tribunal also considers this to be a serious breach given the significance of enrolment in a registered course, for the visa granted.
The extent of compliance with visa conditions
The Tribunal finds that the period of his breach of condition 8202 to be a considerable period of time, exceeding seven months. The applicant did re-enrol in a registered course on 7 December 2017, though at the Vocational Education and Training (VET) level and then only after being first issued with a NOICC a few days earlier. The Tribunal therefore gives this factor some weight in favour of the visa being cancelled.
The applicant completed a Certificate IV in Marketing in early 2014 and a Diploma of Business Administration in January 2016 and has submitted evidence of certificates of completion of these studies. There is no evidence of the applicant having completed any course of study at the higher education level, the level of study for which his Student visa was granted.
On the basis of the foregoing evidence, the Tribunal is not satisfied the applicant has achieved a reasonable degree of compliance with the study purpose and conditions of the Student visa. The foregoing considerations weigh in favour of cancellation of the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant claims that he has suffered “immense psychological pain” and weight loss through the stress and significant financial loss which arose from his ill-fated business venture. Furthermore, should his visa remain cancelled it would deprive him of the excellent career opportunities that an overseas qualification would afford him in Kuwait where he has family members ready to assist him in finding employment. The applicant has tendered no evidence in support of his claims regarding any future career prospects in Kuwait. However the Tribunal is prepared to accept that a university qualification, particularly from English-speaking countries such as Australia, the USA or the UK would be of some value to the applicant’s future career overseas.
Whilst the Tribunal has some sympathy for the stress and financial loss that the applicant might have experienced in his unsuccessful business acquisition, his foray into this venture was entirely his own decision; it was not a purpose for which his Student visa was granted. Indeed such an investment of time and money would most likely divert the applicant’s attention from the primary purpose for which a Student visa is granted – to engage in study in pursuit of an educational outcome.
The Tribunal finds that the stress and associated hardships that the applicant speaks of arise not from his studies but relate almost entirely to his ill-fated business venture. The Tribunal accepts the applicant and his family invested money and time in the applicant’s travel to and stay in Australia, including fees thrown away as a consequence of the cancellation of the applicant’s enrolment and his visa. These consequences are a foreseeable result of the cancellation of the visa. Given the limited evidence on this factor, the Tribunal does not accept that these would be significant hardships and it gives this factor little weight in favour of exercising its discretion to set aside the visa cancellation.
The evidence before the Tribunal does not demonstrate that cancellation of the visa may have caused or may cause the applicant or members of his family a degree of emotional, psychological or psychiatric hardship that would weigh in favour of exercising its discretion to set aside cancellation of the visa.
Circumstances in which ground of cancellation arose
In written submissions and in his oral evidence the applicant claims an ill-fated business transaction (the purchase of a small store) severely strained his and his family’s finances, resulting in him enrolment being cancelled and leading to his depression due to his worsening financial and personal situation. As previously notes the applicant’s decision to embark on this business venture was entirely his own. It is a curious decision given that the purpose of his being granted a Student visa was for him to engage in studies in order to achieve an educational outcome.
On the evidence, the applicant’s enrolment in the Bachelor of Business registered course was cancelled on 19 April 2017, and he had not been enrolled in a registered course of until 7 December 2017 when he enrolled in the VET level Advanced Diploma of Leadership and Management course. It would appear that the applicant did not consult with the Department or seek to change his visa prior to changing his enrolment. It is therefore likely that the applicant’s change of enrolment caused him to breach another condition of his visa in that he had failed to comply with condition 8516, because he had ceased to be enrolled in a Higher Education Sector course. However this does not form the basis of his visa cancellation and the Tribunal therefore gives no consideration or adverse weight to this factor.
With respect to his claims of psychological stress, the applicant has provided no evidence of his undertaking ongoing mental health assessment or financial counselling to assist him in resolving his business woes or indeed to assist him with any difficulties arising from his studies. There is a referral from his general practitioner dated 7 December 2017, with evidence of a mental health assessment and referral to a psychologist. However Tribunal places little weight on this psychologist assessment since the consultation took place after the applicant had been served with a NOICC and it is the applicant’s fear of cancellation of his visa which is likely to have motivated him to seek the consultation rather than any concerns over cessation of his studies. Further there is no evidence that the applicant has pursued any ongoing psychological treatment.
It is the responsibility of the Student visa holder to contact the Department before they take any action to significantly change their circumstances (such as ceasing studies without obtaining alternative enrolment or not commencing further studies) and to clarify any consequences that may result from such a change.
On the basis of the evidence before the Tribunal, including the applicant’s response to the NOICC and the post-hearing written submission, the Tribunal is not satisfied the circumstances in which the ground for cancellation arose were exceptional and beyond the applicant’s control. For one thing the applicant’s decision to embark upon a significant business transaction entirely separate to his studies was his decision alone; it was not the purpose for he was granted a Student visa. Furthermore a visa holder is expected to be aware of visa conditions and obligations yet the applicant failed to contact the Department since he ceased his studies to advice of his circumstances or seek clarification on these matters. Instead he continued to remain in Australia in non-compliance with his student visa condition.
The Tribunal has already observed that the applicant’s primary reason for being in Australia was to pursue his study goals. The Tribunal acknowledges that the applicant’s friends and family have been, and continue to be, supportive of him. However for the applicant to embark upon a significant business venture whilst he is onshore as a temporary visa-holder would appear to be foolhardy at the very least.
The Tribunal also accepts that if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to detention under s189 and removal under s198 of the Act. He would also have limited options to apply for further visas in Australia and may thus be required to return to his home country. However, this does not satisfy the Tribunal it should exercise its discretion to set aside cancellation of the visa.
Past and present behaviour of the visa holder towards the department
According to the decision record, there was no evidence that the applicant had been unco-operative towards the Department. He responded promptly to the Departmental NOICC. The Tribunal give this some little weight in favour of exercising its discretion to set aside cancellation of the visa.
Whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, 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
The Tribunal acknowledges that cancellation of the applicant’s visa would result in his being prevented from being granted a range of temporary visas, including Student or Visitor visas, for a period of three years by operation of Public Interest Criterion 4013. It further notes that the applicant would be prevented from applying for many visas onshore apart from a limited range of visas, pursuant to s.48 of the Act. However, those are the intended consequence of the legislation and do not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any of its international obligations. The Tribunal therefore finds this factor is not a relevant consideration.
Summary
The Tribunal is mindful of the period of non-compliance exceeding seven months and having considered the evidence individually and cumulatively, the Tribunal is not persuaded that there are grounds upon which it should exercise its discretion to set aside cancellation of the visa.
Considering the circumstances as a whole, the Tribunal is satisfied the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Stephen Conwell
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.

[2020] AATA 1559

30 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Breach

Remedies

Statutory Construction