EL SAMAD (Migration)

[2019] AATA 6477

EL SAMAD (Migration) [2019] AATA 6477 (23 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ALI EL SAMAD

CASE NUMBER:  1709074

HOME AFFAIRS REFERENCE(S):          BCC2017/729243

MEMBER:Justin Owen

DATE:23 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 23 December 2019 at 4:27pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – not enrolled in registered course – change of career – vague evidence – marriage not compelling reason – no particular hardship – reunited with family – claim of motor vehicle accident – did not request deferral – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 119, 140, 359AA
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a national of Lebanon born 25 May 1991.  His Student (Temporary) (class TU) Vocational Education and Training (subclass 572) visa was granted on 24 June 2016 and was subject to condition 8202.  The visa had a stay period with a stay period until 12 May 2018.  On 27 March 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he had ceased to be enrolled in a registered course between 12 August 2016 and 9 April 2017.  The applicant responded to the NOICC on 12 April 2017.  On 18 April 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa.      

3. The delegate cancelled the visa on the basis that the applicant has not complied with the requirements of condition 8202 (2)(a) of the visa.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 5 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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.

9. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 18 April 2017. The decision record states that the Provider Registration and International Student Management System (PRISMS) records indicated that the applicant had not been enrolled in a registered course of study between 12 August 2016 and 9 April 2017.  At the time of the delegate’s decision of 17 April 2017 the applicant therefore had not been enrolled for a total of almost 8 months. 

10. At the hearing the applicant confirmed in questioning by the Tribunal that he had not been enrolled in a registered course of study during this period of almost 8 months.   

11. On 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

12. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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.’

13. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia.

14. The Tribunal considers that the purpose of a Student visa is to enable the visa holder to study in Australia.  The applicant in response to the Tribunal’s questions replied said he travelled to Australia to study.  He stated that unfortunately he was unable to complete all the courses he enrolled in.  He said in the seven years he had been in Australia his goals had changed: originally it was a career in business but now he was focused on a career in the construction industry. 

15. The applicant also informed the Tribunal that he was now engaged and was due to marry his fiancée in February 2020.  His future with his partner was also an important element of his need to remain in Australia. 

16. The Tribunal notes from the decision record the applicant supplied that, according to PRISMS records, the applicant was granted his 572 Vocational Education visa on 24 June 2016 with a CoE for an Advanced Diploma of Accounting at Academies Australasia Institute that was due to commence on 22 February 2016.  According to the decision record this enrolment was cancelled on 12 August 2016 as the applicant failed to enrol in term 3.  The decision record states that the applicant subsequently obtained a CoE in a Diploma of Human Resources Management at Accredited Training Centre of Australia Pty Ltd on 11 April 2017 with the course commencing 10 April 2017.

17. At the hearing the Tribunal enquired as to the applicant’s progress with his studies since this time.  The Tribunal found the applicant to be quite confused and evasive as to his progress with various courses and particular education providers.  The applicant thought he had completed the Advanced Diploma of Accounting at Academies Australasia Institute but he initially was not certain as to exactly when the course was completed.   He subsequently thought he had moved his enrolment to another college – QIBA – but stated he could not remember the course or date.

18. The Tribunal noted from the decision record the applicant supplied that PRISMS records indicated that the applicant’s last enrolment prior to the issuing by the Department of the NOICC was the Advanced Diploma of Accounting at Academies Australia which was cancelled on 12 August 2016.  The applicant said he thought he moved from this course to another college in Parramatta and received an Advanced Diploma in Accounting in late 2016 or early 2017.  The Tribunal noted that there was no record of any completed Advanced Diploma in Accounting.  The applicant asked the Tribunal what colleges he received his qualifications from.    

19. The Tribunal asked the applicant as to the outcome of his planned studies with the Diploma of Human Resource Management at Accredited Training Centre of Australia Pty Ltd.  The applicant said he initially attended a few weeks of the course but had not completed the course.  In response to the Tribunal’s questions the applicant conceded he had not enrolled in or completed any other courses since his cancellation. 

20. At the hearing the Tribunal put to the applicant his Provider Registration and International Student Management System (PRISMS) record of 5 July 2019 under s359AA.  The Tribunal noted the record indicated that the last course the applicant completed was an Advanced Diploma of Management in October 2015; that his enrolment in a Diploma of Human Resource Management had been cancelled; and his enrolment in an Advanced Diploma of Accounting had also been cancelled.  The applicant decided to respond in writing.  On 18 December 2019 the applicant responded writing that ‘In regard the courses that I have completed you were right, I only finished diploma and advanced diploma in Management, it was in QIBA college’ (T1, Folio. 29).  The applicant also provided a copy of his certificate of completion from Qiba for an Advanced Diploma of Management dated 16 August 2015 (T1, Folio. 28). 

21. The Tribunal notes therefore that, despite his earlier oral claims, the applicant has not completed any courses of study since being granted his 572 Vocational Education visa on 24 June 2016 and has not been enrolled in any course of study since the cancellation of Diploma of Human Resources Management.  The applicant did not complete his Advanced Diploma of Accounting in late 2016 or 2017 as he had claimed at the hearing: the course in fact was never completed.   He is not currently enrolled in any course of study.  The Tribunal acknowledges the applicant’s stated claim that he wishes to study building through the NSW TAFE system but there remains no corroborative evidence of any current desire to study as per the conditions attached to his 572 Vocational Education visa.

22. The Tribunal accepts the applicant under his previous 573 Higher Education visa did exhibit some success in his studies that suggests at that earlier particular time the purpose of his travel to Australia was for study, successfully completing a Diploma of Business and an Advanced Diploma in Management.  The Tribunal notes however that his last successful completion of a course was over four years ago, the Advanced Diploma of Management that he completed on 16 October 2015 (T1, Folio. 28).   

23. The applicant spoke in some detail about his engagement and upcoming wedding on 22 February 2020 to his fiancée. The applicant wrote it would be a disaster if he had to depart Australia with a wedding pending and his fiancée still studying.  Despite the lack of corroborative evidence of the looming wedding, for the purposes of this review the Tribunal accepts the applicant’s claims he is engaged to be married in less than two months’ time.

24. The Tribunal has considered the evidence before it.  The Tribunal does not, based upon the evidence before it, consider that the purpose of the applicant’s stay in Australia is study and he has a compelling need to remain in Australia.  

25. The Tribunal notes that the applicant last successfully completed a registered course of study over four years ago on his previous Student Higher Education visa.  His commitment to study whilst holding a Student Vocational Education visa is, in the opinion of the Tribunal, dubious.  He has failed to successfully complete any registered course of study and has not in fact maintained an enrolment in a registered course of study now for a significant period of time.  The Tribunal appreciates his claims that he would like to study building through the NSW TAFE system.  The Tribunal notes however the lack of any corroborative evidence before it concerning this claim.  The fact remains the applicant is not enrolled in a registered course of study and has not done so now for many months.  The Tribunal has some concerns as to the genuineness of his current commitment to study and education.   The applicant’s vagueness and inability to recall basic issues pertaining to his study record in Australia leads the Tribunal to question his commitment to study and education both now and in recent years.  The Tribunal does not consider the applicant’s pronounced desire now to remain in Australia to commence further studies represents a compelling need for the applicant to remain in Australia.  The Tribunal is not convinced on the evidence before it that the applicant’s purpose in Australia is to study.

26. The Tribunal accepts that the applicant wishes to remain in Australia to marry his fiancée.  The Tribunal notes however that the applicant is the holder of a Student visa.  Its purpose is for study and education.  There are a range of options available to the applicant if the purpose for his stay in Australia is marriage such as a Partner visa.  The applicant is more than capable of being sponsored by his Australian citizen fiancée and lodging a Partner visa application should his claims concerning his planned marriage on 22 February 2020 be correct.  A bridging visa would then usually be issued to the applicant whilst the application is assessed.  Given this, the Tribunal does not consider his planned marriage represents a compelling need for the applicant to remain in Australia on a Student visa.    

27. On the evidence before it concerning the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor in favour of cancelling the visa. 

28. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with the conditions of his visa by not being enrolled in a registered course of study for almost eight months to be significant.  The Tribunal notes from the applicant’s oral testimony that he arrived in Australia some seven years ago and this is not his first Student visa.  The Tribunal considers he was experienced with the visa requirements and obligations for a visa holder, even if he was utilising an external agent to assist with migration matters who he claims was deficient in managing his affairs.  The Tribunal notes the applicant in response to the Tribunal’s questions conceded he was aware that not being enrolled in a registered course of study would impact upon his eligibility to continue to hold a Student visa.  The Tribunal is of the opinion the applicant was well aware he was not complying with the conditions of his Student visa whilst he was not enrolled in a course of study.  The Tribunal recognises the applicant’s oral testimony as to the problems he faced from his former representative and agent and gives this some limited weight: the applicant said he didn’t receive the NOICC directly because it went to his agent.  The applicant blamed his agent or representative for not keeping him informed.  He said that he had put his trust in his representative but had been let down. The Tribunal nevertheless notes the applicant had an obligation to keep himself informed and updated as to his immigration status.  The Tribunal considers the applicant’s non-compliance with his visa conditions to be considerable.  On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa. 

29. The Tribunal has considered the degree of hardship that may be caused to the applicant and his family should his Student visa be cancelled.  

30. In relation to himself the applicant said it had been his ambition to stay in Australia and he had dreamed about it from a young age. 

31. He also stated that cancellation would have an impact on his relationship and his impending marriage.  He also mentioned it had been now seven years since he had seen his family in Lebanon and he missed them very much.

32. The Tribunal has also considered the applicant’s claim that he wishes to study building and any hardship that may eventuate from any cancellation in this area.  

33. In relation to his family, the applicant stated he had become engaged two months ago to marry on 22 February 2020.  He said his fiancée Heba was an Australian citizen.  He said that she was 21 years of age and was studying.  She would not be able to travel overseas with him should his visa be cancelled. 

34. The Tribunal does not on the evidence before it consider the hardship that may be caused to the applicant and his family to be particularly significant or onerous. 

35. The Tribunal accepts that the applicant has a genuine desire to remain in Australia and has found the seven years he has resided in Australia to be a happy and satisfying period.  This does not however mitigate the requirement of any visa holder to meet the conditions attached to his visa.  The Tribunal does not consider any general unhappiness the applicant may have from the cancellation of his visa is unusual or onerous.  There is no evidence before the Tribunal or claim made that the applicant is suffering from any psychological or mental health issues in relation to himself and his claimed need to remain in Australia.  The Tribunal does not consider the fact the applicant wishes to remain in Australia is a reason to not cancel his visa. 

36. In relation to his desire to study building in Australia, the Tribunal notes there is no corroborative evidence of any plans the applicant has to commence studies in this area.  Even if this was the case, the Tribunal does not consider that the applicant’s desire to study building – and the difficulties that may be caused him should his visa be cancelled – is a reason not to cancel his visa.  The applicant retains the option of studying offshore and there is nothing to preclude him from seeking enrolment in a building course outside of Australia.  The Tribunal does not consider the loss of the opportunity to study building in Australia represents a hardship that is either onerous or significant. 

37. In relation to his family and his fiancée, the Tribunal accepts that the applicant intends to marry his fiancée Heba on 22 February 2020 in Australia.  The Tribunal does not however consider the cancellation of his Student visa – and its potential impact upon his impending marriage - represents a significant degree of hardship on either the applicant or his fiancée. The Tribunal does not accept the claim he will be compelled to depart Australia and his relationship may collapse.   The applicant retains the ability to apply for a Partner visa onshore – sponsored by his Australian citizen fiancée - if he is a genuine and continuing spousal relationship with his fiancée.  He can potentially do so on the basis of a de facto relationship today.   The applicant after lodgement would in all likelihood be granted a Bridging visa that would allow him to remain in Australia whilst his claims for a Partner visa are being assessed.  The Tribunal on this basis does not consider there to be any particular hardship that might be caused to either the applicant or his fiancée should his Student visa be cancelled.  The Tribunal does not consider there would be any hardship caused by potential separation or through the applicant’s fiancée feeling or being compelled to travel offshore with the applicant at this time.  

38. There is little other evidence or claim made as to any hardship that might be caused to other family members.  The applicant does not have any other family members in Australia.  The Tribunal notes the applicant mentioned the hardship he felt after being separated for seven years from his family – that is understandable.  If his visa was to be cancelled and he departed Australia for Lebanon then this hardship would essentially be alleviated.  The applicant states that he tries to help his family offshore financially from time to time but there is little evidence of either the quantum or regularity of this assistance.  The Tribunal gives the claim little positive weight.   

39. On the evidence before it relating to the degree of hardship that might be caused to the applicant and the applicant’s family should his visa be cancelled, the Tribunal weights this factor in favour of cancelling the visa. 

1. The Tribunal has considered the circumstances in which the ground for cancellation arose.

2. At the Tribunal hearing the applicant conceded in oral evidence that he had not been enrolled in a registered course between 12 August 2016 and 9 April 2017. The ground for cancellation arose due to the failure of the applicant to remain in a registered course of study for a total of almost 8 months. 

3. The Tribunal asked the applicant why he was not enrolled during this period.  The applicant said he had had a motor vehicle accident which precluded him from attending his course ‘for a month or two’.  The applicant was not sure whether the accident was either in February 2016 or 2017.  The Tribunal notes from the delegate’s decision record that the applicant in his response to the NOICC had stated the motor vehicle accident had caused him neck and back pain which impacted upon his daily activities.  This led to him experiencing discomfort, being unable to study for long periods of time; and ultimately made studying effectively very difficult.  At the hearing however the applicant said that this was not the actual reason why he didn’t study.  He said that when he went to the office of his representative after his cancellation he was advised to utilise the motor vehicle accident as a reason as to why he was not enrolled.  The applicant also said he failed to resume his studies as he had a break after the motor vehicle accident and he was then waiting for his agent or the college to inform him that his studies had resumed.  He was not however informed of this.

4. The applicant claimed in oral testimony that he had not seen the letter granting himself a visa which included the conditions of his visa and the consequences of non-compliance.  He said he was only aware he was not enrolled after he heard from a friend who had also discovered he was not enrolled and his visa had been cancelled.  He claimed he didn’t know he had to inform the Department of his change of circumstances. 

5. The applicant said he never contacted the Department to discuss his enrolment.  He also did not request a deferral from his studies in his course of study.   The applicant said when he arrived in Australia he studied business and accounting.  He said he had now moved to building and tried to enrol in TAFE.  He said the standards in Australia to work in building were higher than off-shore and he was waiting for a decision from the Tribunal before making any move. 

6. On the evidence before it the Tribunal is not satisfied that the applicant’s injuries from a motor vehicle accident in either February 2016 or 2017 mitigate his considerable period of non-compliance.  The Tribunal notes the applicant’s admission – and the Tribunal appreciates his honesty and candour – that he was informed by the office of his representative to draw upon the accident after seeking advice after receiving the NOICC.  The Tribunal accepts the accident may have caused the applicant some discomfort.  The Tribunal does not, in the absence of any corroborative medical evidence, accept that the applicant was precluded from maintaining an enrolment during this period. The Tribunal notes that if the motor vehicle accident occurred in February 2016, the accident does not reasonably explain why the applicant failed to re-enrol in his Advanced Diploma of Accounting in August 2016, particularly given his statement that the motor vehicle accident only precluded him from studying ‘for a month or two’.   If the accident were in February 2017, the Tribunal notes that it would have no impact as to why the applicant failed to maintain his enrolment in August 2016 leading to the NOICC nearly eight months later.  The Tribunal furthermore notes the applicant obtained a CoE in April 2017 in a Diploma of Human Resource Management, suggesting he was not suffering from injuries that precluded him from studying at that time.  

7. In relation to the alleged failure of his education provider or his former representative to inform him that his studies had recommenced, the Tribunal gives this claim no positive weight. Visa holders have an obligation to ensure that they continue to meet the conditions attached to their visa including that of maintaining an enrolment.  The Tribunal does not accept that the applicant’s failure to recommence his studies can be excused in any way by passing the responsibility for keeping himself informed on matters as basic as when his classes resumed to either his education provider or representative. The applicant by this time had successfully completed a number of courses whilst holding a 573 Higher Education visa and in the Tribunal’s opinion was well aware that students in Australia have an obligation to keep themselves informed of such matters as the date upon which their classes and studies recommence.  The Tribunal gives the applicant’s claim no positive weight.     

8. The Tribunal is not satisfied that the applicant’s motor vehicle accident and his alleged injuries adequately explain the applicant’s significant period of non-enrolment.  The applicant’s subsequent failure to maintain enrolment in a registered course of study over the following two years speaks to the Tribunal of the applicant’s desire and motivation to continue his vocational education studies in Australia.  The Tribunal does not consider the applicant’s injuries from a motor vehicle accident mitigate the applicant’s breach of the visa condition to maintain enrolment in a registered course of study.  The Tribunal recognises the applicant’s expressed desire to study building at the TAFE level in NSW.  The challenge the applicant has faced in securing enrolment in such studies does not in the Tribunal’s opinion mitigate his failure to maintain enrolment in a registered course of study now for a significant period of time.  On the evidence before it relating to the circumstances in which the ground for cancellation arose, the Tribunal weights this factor in favour of cancelling the visa.     

9. The Tribunal has considered the past and present behaviour of the applicant towards the Department.   There is no evidence before the Tribunal that the applicant has not complied with all other visa conditions.  The Tribunal notes the applicant responded to the Department’s s.119 letter and gives this some positive weight.  On the evidence before it the Tribunal weighs this factor slightly against cancelling the visa. 

10. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. On the evidence before it the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

11. The Tribunal has considered whether there are 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 of the applicant’s visa.  There is no information before the Tribunal which indicates that any cancellation would result in any breach of Australia’s international obligations.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

12. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia.  He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia.  The Tribunal notes that the applicant, if he were to apply for a further Student visa offshore, will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a further Student visa for three years from this date.  The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged.  As previously discussed in this decision record, given his claimed spousal relationship with his fiancée, he retains the ability to lodge a Partner visa application that is not subject to an s48 bar and potentially remain in Australia on a Bridging visa whilst his application is assessed.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.       

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

    DECISION

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

    Justin Owen
    Senior 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.