ILKER (Migration)

[2018] AATA 3499

ILKER (Migration) [2018] AATA 3499 (6 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr OZKAYA ILKER

CASE NUMBER:  1616130

DIBP REFERENCE(S):  BCC2016/2474498

MEMBER:Mr S Norman

DATE:6 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 06 August 2018 at 10:40am  

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – Breach of visa conditions – Enrolment in a registered course of study – Substantial gap of over 18 months since last enrolment – Poor academic history – Medical issues – Did not work in Australia – Belated attempts to obtain enrolment – ‘No plans’ in Turkey – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116
Migration Regulations 1994 (Cth), r 1.40A Schedule 2 cls 573.231, 573.223 Schedule 4 Criteria 4013 Schedule 8 Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 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). The delegate cancelled the visa on the basis that the applicant had breached condition 8516. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

2. The Department delegate’s decision was lodged with the Tribunal.

3. The applicant appeared before the Tribunal on 30 July 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

4. 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

5. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8516 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 8516?

6. Condition 8516, as it applies in this case, requires that the applicant:

   8516 - The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

7. Relevant to this case is that the applicant was granted the Higher Education Student visa on the basis that he continue to satisfy criteria in cl.573.223(1A) (confirmation of enrolment); or cl.573.231 (current offer of enrolment).

8. The applicant was granted a Student (Temporary) (classed TU) Higher Education Sector (subclass 573) visa on 1 May 2014. By Notice of Intention to Consider Cancellation (NOICC) of that Student visa dated 7 September 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS), indicated the applicant was not enrolled in a Bachelor or Masters degree course of the type specified in subclass 573 visas by the Minister and the instrument made under reg. 1.40A. Further, that it therefore appeared the applicant’s Student visa maybe cancelled pursuant to s.116(1)(b) of the Act.

9. The applicant was granted the Student visa on the basis that he continued to satisfy criteria in cl.573.223(1A) (confirmation of enrolment); or cl.573.231 (current offer of enrolment). As the applicant did not continue to be a person who would satisfy either of the above sub-clauses, the applicant had not continued to be a person who satisfied the criteria for his Student visa – condition 8516.

10. The applicant provided response/s to the NOICC letter. However, he did not dispute that grounds for cancellation existed. Further, around the time of the delegate’s decision, approximately 18 months had elapsed since the applicant had been enrolled in a registered course of study in Australia.

11. After discussing it with the applicant at hearing, and based on the evidence before the Tribunal, the applicant was not enrolled in a registered course for the period stated above. Accordingly, the applicant has not complied with condition 8516.

    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 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 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).

13. Regarding the purpose of the applicant’s travel to and stay in Australia, he said he intended to study at a Higher Education Sector level. At hearing, the (now 34 year old) applicant explained that he had arrived in Australia in 2009. He had undertaken some studies after arriving but he had never worked. He had lived with his elder sister. The elder sister did not work, but her husband worked in a factory making kitchens and he financially supported his wife (the applicant’s elder sister), his own three children and the applicant. The applicant also said his own father (a retired metal work and farmer) would occasionally send him money.  

14. As noted above, some years after arriving in Australia, the applicant was granted the Student (Temporary) (classed TU) Higher Education Sector (subclass 573) visa on 1 May 2014. On 17 August 2015, the applicant had also lodged a valid application for a Training and Research (Occupational Trainee Stream) Temporary (subclass GC 402) visa, but on 27 January 2016 that application had been refused. On 11 March 2016, the applicant sought merits review of that decision by the Administrative Appeals Tribunal (Tribunal) and at the time of the delegate’s decision that review remained outstanding. The delegate went on to note the applicant does not need to retain his Higher Education Student visa in order to pursue merits review of the above decision (and when discussed at hearing, the applicant did not have any idea about where this alternate visa application may have progressed to).  

15. At the Tribunal hearing, the applicant had said he understood the above Training and Research (Occupational Trainee Stream) Temporary (subclass GC 402) visa, would allow him to work in Australia, however, the Tribunal noted his Student visa would also allow him to work in Australia. He believed however, that his prior migration agent had (words to the effect) provided him with poor advice and he did not know (at least initially) that a merits review application for the Training and Research (Occupational Trainee Stream) Temporary (subclass GC 402) visa had been lodged with the Tribunal. It was also explained at hearing, that the applicant had assumed that he did not need to study when the Training and Research (Occupational Trainee Stream) Temporary (subclass GC 402) visa was being processed. That being said, the Tribunal does not believe this supports the claim the applicant had been unwell and therefore unable to study in Australia (discussed below). Otherwise, it is not plausible he would (at least temporarily) have pursued a visa that (he thought) would allow him to work in Australia. Be that as it may, based on all the evidence before it, the Tribunal is not satisfied the applicant’s present intention to reside in Australia is for the purposes of study.

16. Next, and regarding the extent of the applicant’s compliance with any conditions to which his Student visa was subject, when responding to the Department’s NOICC letter the applicant provided an offer of acceptance and enrolment at the Universal Business School Sydney (UBSS). This was for a Bachelor of Business course and was dated 19 September 2016. The course was to commence on 24 October 2016. However the Tribunal notes the applicant was issued the NOICC letter on 7 September 2016 and the letter of offer is dated almost 2 weeks after this date. Also, and on the day of the hearing, the applicant lodged evidence that the applicant had undertaken two subjects for the 2016 Bachelor of Business course at UBSS (having been granted exemptions for six subjects). However, he then had failed both subjects (inter alia due to a lack of English language proficiency). Be that as it may, around the time of the Department delegate’s decision, the applicant had failed to maintain enrolment in an appropriate course of study for approximately 18 months. The Tribunal believes this non-compliance to be significant.  

17. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, the Tribunal accepts the applicant (or his family) may be subject to some financial (or other) hardship if his visa is cancelled (the Tribunal understands the applicant used his own savings to make initial payments for study in Australia from 2009). The applicant may also be liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention. Further I note he could apply for or retain a Bridging visa to in order to remain in the community to finalise his affairs prior to departing.

18. The 34 year old applicant also feared he may have to ‘start again’ and (ie) undertake an entrance exam if he wished to study a Bachelor degree in Turkey. The Tribunal noted the country information stated:

    3.17 Turkey provides state-financed primary, secondary and tertiary education. Pre-primary education is optional. Enrolment in primary schools is close to 100 per cent. Compulsory education to year 12 was introduced in 2012. According to the OECD, 36 per cent of adults aged 25-64 have completed upper secondary education, much lower than the OECD average of 76 per cent. A survey published in 2016 that took all age ranges into account found that 17.2 per cent of the Turkish population are high school graduates and 11.2 per cent are university graduates. The adult literacy rate, encompassing men and women, is 95.3 per cent. Turkey has a range of private schools and universities at all levels, and permits some religious and ethnic minorities to open private educational facilities.[1]

    [1] DFAT Country Information Report, Turkey, 5 September 2016

19. After putting the gist of this information at hearing, the applicant still feared he would not be able to study in Turkey, and/or it would be easier to study in Australia, and that (words to the effect) he had ‘no plans’ in Turkey. The applicant’s agent believed there was only one university in the applicant’s home town/city (in Hatay Province). Further, at hearing the applicant said, and the Tribunal accepts, his father would continue to support his studies in Australia – and I also believe he would continue to support the applicant’s studies in Turkey. However, and after considering the applicant’s lack of study at an appropriate level in Australia (for a reasonably lengthy period), and his lack of work in Australia (since arriving in 2009), the fact he may have to ‘start again’ in Turkey and or work to support himself in Turkey, has not satisfied the Tribunal it should not exercise the discretion to cancel the visa. The Tribunal also believes the courses the applicant did complete in Australia may be of some use to him on return to Turkey.

20. Regarding the circumstances in which the grounds for cancellation arose, the applicant said he travelled to Australia in 2009 to improve his English language skills; he said he studied one year of an English course and achieved Intermediate Level in September 2010 at the Academy of English (at hearing he explained this was a 25 week course); he was then accepted by the Holmes Institute to complete a Bachelor degree; however he did not achieve the English language requirement and he was then offered a 10 week English language course prior to undertaking his degree; he was then recommended to take a Certificate course instead prior to commencing his Bachelor degree due to his limited English language proficiency; the applicant then commenced a Certificate IV in Business and a Diploma of Management to be followed by a Bachelor degree; he then said he was “happy he could finally commence his academic course” on 7 February 2011.The applicant also said he successfully completed a Certificate IV course in March 2012; he then studied a Diploma course until 8 November 2013; he was not allowed “complete the remaining subject” (though he explained he repeated the same subject but failed again); he was not awarded the Diploma; and he changed to a Diploma of Hospitality.

21. At hearing, the applicant said he had completed courses (Cert IV and Diploma) after he was granted the Higher Education Student visa (on 1 May 2014). However, as noted at hearing, he had failed to maintain enrolment in an appropriate course for approximately 18 months around the time of the delegate’s decision.

22. Next, and as noted above, the applicant obtained a COE from UBSS (19 September 2016 – after the NOICC was issued), and then failed the only two subjects he had attempted.  Two years later he obtained a Offer and Acceptance of Enrolment letter dated 24 July 2018 from Group Colleges Australia. This was for a Bachelor of Business course. He claimed to have applied for this two weeks prior to the Tribunal hearing. His migration agent claimed the applicant had attempted to obtain enrolment prior to this time, however, when then questioned at hearing, the applicant said he had made one prior attempt to enrol, and only with UBSS – as he understood the teaching method there. The Tribunal is not satisfied the applicant’s belated attempt/s to obtain an enrolment in an appropriate course, substantiates his claim to wish to continue to study in Australia.

23. Next, and as noted above, the applicant said he understood the Training and Research (Occupational Trainee Stream) Temporary (subclass GC 402) visa, would allow him to work in Australia, however, the Tribunal noted his Student visa would also allow him to work in Australia. He believed however, that his prior migration agent had (words to the effect) provided him with poor advice and he did not know that a merits review application for the Training and Research (Occupational Trainee Stream) Temporary (subclass GC 402) visa had been lodged. His current migration agent explained that the applicant had assumed he did not need to study when the Training and Research (Occupational Trainee Stream) Temporary (subclass GC 402) visa was being processed, which does not support his claim to have been unwell, but still wished to study in Australia. This is a further reason that satisfied the Tribunal the applicant’s belated attempts to obtain an enrolment in an appropriate course, does not substantiate his claim to wish to continue to study in Australia.

24. Next, the then 30 year old applicant (now 34 year old applicant) said he fell ill and he suffered depression; he said he was far away from his parents and did not feel happy; he then said his English was still not adequate. He said he lost weight and could not eat and he felt nauseous. He then commenced to see a doctor from 2014 and was treated for a gastro- and intestinal problems; he was put on some medication; he also lost consciousness in 2015 and also in August 2016 (though at hearing he was unsure why this occurred); and various medical certificates and records were lodged. The applicant also referred to his English still being inadequate but ‘now’ it has improved and he is ready to commence his Bachelor of Business course on 24 October 2016. That being said, after then commencing the Bachelor of Business course on 24 October 2016, the Tribunal understands the applicant failed the only two subjects he attended - and as a result, he undertook a further English language course in early 2017 (discussed below).  

25. At hearing, the applicant said he was unwell in 2014/2015/2016 and when discussing why he had not sought to enrol in 2017, it was subsequently claimed he was unwell in 2017. At hearing, he explained he attended a doctor around 10 or more times for just over 12 months (this was only for the gastro issues – which issues he had also suffered in Turkey). He also took medication (for the gastro issues). He also said he missed his parents (though the Tribunal understood that he lived with his elder sister since arriving in Australia). Though medical assistance was discussed, the applicant did not claim to have received any assistance for his (ie) depression. The Tribunal also does not understand the applicant made any serious efforts to defer his Student visa or return to Turkey (in order for his health to recover).  When asked about returning to Turkey to recover, he said he had the same problem there. That being said, the Tribunal is satisfied that applicants who are granted Higher Education Student visas understand they need to maintain enrolment in a registered course of study, with no more than a two month gap. The present applicant did not maintain enrolment in an appropriate course of study. The Tribunal accepts the applicant had some medical issues for a limited period. However, and based on all the evidence before it, the Tribunal is not satisfied the applicant’s health justifies the length of time he has failed to maintain appropriate enrolment in Australia.

26. Next, after the aforementioned 2016 course (2016 UBSS), the applicant (who had at that time resided in Australia for some seven years) undertook an IELTS test on 4 August 2016.[2] That indicated an overall score of “4” – and when the Tribunal noted this was a low score, this had not been disputed at hearing. The applicant had then undertaken a General English (Beginner to Upper Intermediate) (12 to 60 weeks) (Non AQF Award). That course was to start 20 February 2017 and to finish on 30 June 2017 (the Tribunal accepts the applicant completed this course). However, the applicant had not then obtained an Offer and Acceptance of Enrolment until 24 July 2018[3] (over 12 months later). The applicant’s agent said this was because it proved difficult for the applicant to obtain an enrolment due to his visa difficulties. However, after discussing it at hearing, the applicant only applied twice after the aforementioned English language course in 2017 (and the most recent time was around three weeks prior to the Tribunal hearing). The Tribunal does not accept this belated and limited effort supports the applicant’s claim he wishes to continue to study in Australia.

    [2] Department – folio 38.

    [3] Tribunal – folio 33.

27. Next, the Tribunal acknowledges that it has no training in assessing English language proficiency. However, the Tribunal merely notes that when speaking in English at the hearing, both slowly and simply, the applicant conceded he only understood part of what the Tribunal was saying. Accordingly, the Tribunal was assisted by an interpreter at hearing.

28. Regarding any legal consequences arising from the cancellation of the applicant’s visa, the Tribunal notes the applicant would be subject to s.48 of the Act (meaning he would have limited options to apply for further visas in Australia); and he would be subject to PIC 4013 (meaning he would be subject to a qualification for the grant of any further visa). Regarding the applicant’s past and present behaviour towards the Department, there is no evidence the applicant has been uncooperative with either the Department or the Tribunal.

29. Regarding whether Australia’s international obligations would or may be breached if the applicant’s visa is cancelled, there is no evidence before the Tribunal that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

1. After considering the circumstances as a whole, and based on the evidence before the Tribunal, I am not satisfied the applicant’s claimed medical and/or other issues, justify the lengthy period of time he did not maintain enrolment in an appropriate course of study in Australia.

2. Accordingly, the Tribunal concludes that the Student visa should be cancelled.

   DECISION

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

   Mr S Norman
   Member