EL YOUSSEF (Migration)

[2018] AATA 375

EL YOUSSEF (Migration) [2018] AATA 375 (12 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MOHAMAD EL YOUSSEF

CASE NUMBER:  1616116

DIBP REFERENCE(S):  BCC2016/2874966

MEMBER:Antoinette Younes

DATE:12 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 February 2018 at 4:00pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement to be enrolled in a registered course – Applicant not enrolled in a registered course – Consideration of discretion – Significant period spent not enrolled - No academic progress since grant of visa – Degree of hardship does not outweigh grounds for cancellation

LEGISLATION
Migration Act 1958, s 116(1)(b)
Migration Regulations 1994, Schedule 8, Condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 September 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

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

3. The applicant appeared before the Tribunal on 8 February 2018 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

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

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

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

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

9. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record in which it is noted that information available in the Provider Registration and International Student Management System (PRISMS) indicates that as of the date of the delegate’s decision record of 27 September 2016, the applicant had not been enrolled in a registered course of study since 23 July 2015.  In the course of the hearing, the applicant agreed with this information and advised that he is still not enrolled in a registered course of study.

10. On the evidence before it, the Tribunal finds that the applicant has not been enrolled in a registered course since 23 July 2015. Accordingly, the applicant has not complied with condition 8202(2). As the applicant has not complied with the visa condition, the ground for cancellation in s.116(1)(b) arises.

    Consideration of the discretion to cancel the visa

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

12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

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

13. The applicant has claimed that the purpose of his travels and stay in Australia was to study and he was granted the visa for that purpose. In the course of the hearing, the applicant told the Tribunal that he came to Australia in February 2014 to undertake an advanced diploma and a bachelor’s degree in business. He stated that he did not complete the advanced diploma and that he had failed one subject out of the eight. He stated that he went to Lebanon and on his return to Australia, he did not continue with his studies which meant that his enrolment was cancelled in July 2015. He confirmed that he has not enrolled in any other courses.

14. The applicant has been in Australia for approximately four years and during that period, he has not completed any courses. The Tribunal gives significant weight to this aspect.  The Tribunal accepts as plausible that the applicant travelled to Australia to study, but on the evidence before it, the Tribunal is not satisfied that the applicant is staying in Australia for study purposes or that he has a compelling need to remain in Australia.

    The extent of compliance with visa conditions - whether the applicant has otherwise complied with visa conditions now and on previous occasions

15. Although there appears to be evidence of non-compliance with other visa conditions, the applicant’s visa was cancelled on the basis of non-compliance with condition 8202 which the Tribunal considers to be significant and means that the visa should be cancelled.

    The degree of hardship that may be caused to the applicant and any family members - whether the applicant is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

16. In response to the notice of intention to consider cancellation, the applicant noted that he has always complied with the conditions of his visa and he has behaved as a good noncitizen in Australia. If his visa were to be cancelled, this would bring shame on his return to his family. He would suffer emotional, physical and mental trauma because he would be returning to his country without any qualifications which was the only reason for him coming to Australia. His future would be uncertain in case of non-completion of studies. The cancellation would have an adverse impact on his history with which he would not be able to cope.  He has strong support of his family.

17. The applicant gave evidence that his parents and two siblings are in Lebanon and that he has relatives in Australia. He stated that he has been in a relationship for six weeks. When asked about any hardship, he stated that he would like to complete his studies in Australia because Australian qualifications, unlike qualifications from Lebanon, are more valued internationally. He said that he would like to work in countries other than Lebanon on so his qualifications from Australia would be highly regarded.

18. The Tribunal accepts as plausible that if the visa were to be cancelled, there could be a degree of disappointment to the applicant in that he would be returning without qualifications from Australia. The Tribunal has given this aspect some weight.

19. The Tribunal is mindful that the applicant could become unlawful and may be subject to detention but these are consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

20. Looking at the circumstances cumulatively, the Tribunal is not satisfied that there is a degree of hardship that means that the visa should not be cancelled.

    The Circumstances in which ground of cancellation arose - whether there were any extenuating circumstances beyond the applicant’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, whether the relationship has broken down as a result of family violence.

21. The Department sent to the applicant a notice of intention to consider cancellation to which the applicant responded.  In his response, the applicant indicated that he came to Australia to pursue studies at a degree level but he had not had much exposure to university education. He studied for over six months but he struggled at all times. He found it very difficult to adjust and understand the study material. He failed subjects and he felt stressed as a result. He decided to study step-by-step. He spoke to staff at the Holmes Institute and he discovered that he would be able to get credit for studies in the diploma and the advanced diploma towards the degree course. He would be able to get 12 credit exemptions after the successful completion of diploma and advanced diploma courses. He would certainly be able to complete the bachelor’s degree in accordance with his plans.

22. In the course of the hearing, the applicant confirmed that he has not studied since July 2015 and the Tribunal considers that to be significant. As outlined above, the applicant has not enrolled in a course for a substantial period, contrary to a condition attached to his visa.

23. The Tribunal has carefully considered the applicant’s circumstances and on the evidence, the Tribunal is not satisfied that there were extenuating circumstances that mean that the visa should not be cancelled.

    The applicant’s past and present behaviour towards the department - whether the applicant has been truthful and cooperative in their dealings with the department.

24. The applicant responded to the notice of intention to consider cancellation and the Tribunal has given this aspect some weight in favour of the applicant but this does not mean that the visa should not be cancelled.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140

25. There is no evidence before the Tribunal and the applicant is not claiming that there would be any consequential cancellations under s.140.

    Whether there are mandatory legal consequences to a cancellation decision

26. As discussed earlier, the applicant could become unlawful and may be subject to detention but these are consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

27. On the evidence before it, the Tribunal is not satisfied that any international obligations would be breached as a result of the cancellation. 

    Any other relevant matters raised by the applicant

28. There are no other matters requiring consideration by the Tribunal.

29. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. In consideration of the evidence as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Antoinette Younes

    
    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.