KHALED (Migration)

[2019] AATA 6753

KHALED (Migration) [2019] AATA 6753 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr KHODER KHALED

CASE NUMBER:  1724949

HOME AFFAIRS REFERENCE(S):          BCC2017/2825045

MEMBER:Peter Haag

DATE:26 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 September 2019 at 3:01pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa not fulfilled – non-payment of fees – married to an Australian permanent resident – best interest of child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 11 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Student visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the delegate was satisfied a ground for cancellation of the applicant’s Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa was established and further, the delegate was satisfied the grounds for cancelling the visa outweigh the grounds for not cancelling the visa.  

3. 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 27 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Sarah Hamdach, the applicant’s wife. 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 at the time the delegate cancelled the visa on 11 October 2017.

9. The applicant arrived in Australia on 25 May 2015 as the holder of a Student visa granted for the purpose of enabling the applicant to study in the Higher Education Sector. Between 18 June 2015 and 15 January 2016 the applicant undertook a vocational level English language course. The name of the course is English for Academic Purposes (intermediate to advanced). Next the applicant undertook another English language course between 16 May and 3 June 2016; the course has the same name as the applicant’s previous English language course and it was undertaken in the same Institute as the applicant’s previous English language course.  The applicant did not explain his reason for apparently undertaking the same course twice. The next course undertaken by the applicant was also a vocational level course called Hospitality Management Direct Entry Program (intermediate to advanced) between 18 January 2016 and 29 April 2016. In the applicant’s response to the Department’s Notice of Intention to Consider Cancellation (NOICC) of the applicant’s Student visa under s.116 of the Act, dated 14 September 2017, he informed the Department that he had not been enrolled in a registered course of study since 22 November 2016, and that he accepted he breached visa condition 8202. The NOICC is dated 14 September 2017 and the applicant’s response is dated 9 October 2017.  Consequently, the Tribunal is satisfied that the ground for cancellation of the visa is made out. On the evidence before the Tribunal, the applicant did not maintain his enrolment in a registered course of study. Accordingly, the applicant has not complied with visa condition 8202(2).

   Consideration of the discretion to cancel the visa

10. 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 all 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 to and stay in Australia, including whether the applicant has a compelling need to remain in Australia

11. The applicant applied for and was granted a Student visa for the purpose of allowing the applicant to study in Australia in the Higher Education Sector. According to the evidence the applicant did not study in that sector prior to the cancellation of his visa. The applicant is staying in Australia because he is hoping his Student visa will not be cancelled. In evidence the applicant informed the Tribunal that he has not decided on whether to continue living in Australia, or to return to Lebanon, his home country. The applicant said in evidence however that his preference is to return to Lebanon if his Student visa is cancelled.

12. The applicant is now married to Sarah Hamdach, an Australian permanent resident; they were married on 18 September 2018 and their only child was born in Australia on 16 May 2019. The applicant lives together with his wife and daughter.  The applicant indicated in evidence that if his visa is cancelled he would take his wife and child to his home country. His evidence was they would go with him to his home country, and that he would never leave them in Australia. The applicant’s wife heard this evidence because she and her husband refused the Tribunal’s invitation for the applicant’s wife to leave the room rather than remain, thereby engendering a risk that her evidence may appear to be influenced by her husband’s evidence. The applicant’s wife corroborated the applicant’s evidence when he indicated to the Tribunal that his preference was to return home if the Student visa was not granted. The applicant’s wife indicated to the Tribunal that she supported and confirmed her husband’s evidence. Neither the applicant nor his wife indicated that the welfare or best interests of their daughter would be compromised if the visa was cancelled, or that a compelling need existed concerning their daughter, themselves or anyone else, for the applicant to remain in Australia.

13. The applicant did not provide evidence of or submit that a compelling need existed for him to remain in Australia. Nevertheless, the Tribunal has considered the foregoing evidence relating to the fact that the applicant is married and that his daughter was born in Australia, and also to the welfare and best interests of the applicant’s daughter, according to the available evidence. Relevantly, the applicant made clear that if his visa is cancelled he would not leave his wife and child in Australia and he would return to Lebanon with them. The applicant’s wife made clear that she supported her husband’s evidence. She provided no evidence of a compelling need concerning her daughter, herself or her husband, the applicant in this case, to remain in Australia. 

14. The Tribunal has had regard to the vocational level courses completed by the applicant and referred to in this decision at paragraph 9. Further, the Tribunal has had regard to evidence that the applicant enrolled in a Diploma of Leadership and Management at Southern Cross School of Business and completed that course in October 2018. There is no evidence the applicant is currently enrolled in or undertaking a registered course of study. Considering the amount of time the applicant has spent in Australia, and the vocational level courses the applicant has undertaken in Australia, combined with the length of time during which the applicant has not been enrolled in a course of study, the Tribunal is satisfied the applicant has failed to a substantial degree to comply with the purpose for which his visa was granted to him, namely, to study in the Higher Education Sector.

15. Considering the evidence as a whole, relevant to the purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to remain in Australia, the Tribunal is not satisfied the applicant has met to a substantial degree, the purpose for which his visa was granted, and for which the applicant travelled to and is staying in Australia, nor is it satisfied of the existence of a compelling need for the applicant to remain in Australia. The foregoing considerations weigh in favour of cancellation of the applicant’s Higher Education Sector Student visa.

    The extent of compliance with these conditions

16. Earlier in this decision the Tribunal has given regard to the extent of the applicant’s compliance with his Student visa, granted for the purpose of enabling the applicant to study in the Higher Education Sector. In that respect, and having regard to the fact that the applicant arrived in Australia in May 2015, and that he has studied only basic English language courses, the second course appears to be a repeat of the first English language, and that in October 2018 the applicant completed a Diploma of Leadership and Management, the Tribunal is not satisfied the applicant, during his time in Australia, has primarily pursued a study purpose, the purpose for which his visa was granted. This consideration weighs in favour of cancellation of the Student visa.

    Degree of hardship that may be caused to the visa holder and any family members

17. The applicant has not provided evidence that cancellation of the visa would cause financial psychological or emotional hardship to the applicant or any family members. Furthermore, the applicant did not claim that if the visa is cancelled, undue hardship may be caused to himself, his wife, or daughter as a consequence of cancellation. The evidence indicated that the applicant and his wife would voluntarily leave Australia with their daughter and take up residence in the applicant’s home country if the visa is cancelled. The evidence before the Tribunal does not satisfy the Tribunal that a substantial degree of hardship may be caused to the applicant or any family members by cancellation of the Student visa. This consideration weighs in favour of cancellation of the visa.

    Circumstances in which the ground for cancellation arose

18. The applicant gave evidence relating to the circumstances in which the ground for cancellation arose: in summary the applicant could not afford to pay the requisite course fees. In the applicant’s response to the NOICC, the applicant, in providing reasons not to cancel his visa, placed reliance on the fact that he had complied with his visa conditions until November 2016. He also claimed that he had resumed study by October 2017, and that he will comply with visa conditions in the future if his Student visa is not cancelled.

19. The applicant claims a reason his visa should not be cancelled is that his plan to gain permanent residence was frustrated by the termination of his first set of marriage plans.  In January 2017 the applicant met an Australian citizen and he resided with her in her parent’s home. He became engaged to that person in March 2017, and they agreed to marry in September 2017. In this regard the applicant’s marriage agreement included this particular agreement: “we agreed that she was going to sponsor me for Permanent Residents.”[1] The applicant also said, “If she had married me, then I would have been eligible to Lodge an Onshore Spouse visa application.”[2]

    [1] Department file, folio 24 – 25

    [2] Department file, folio 24 – 25

20. It is evident the applicant has spent a significant amount of time in Australia in furtherance of marriage to the Australian citizen for the purpose of becoming a permanent resident. The Tribunal is concerned the applicant has been living in Australia for the purpose of becoming a permanent resident, rather than for the purpose of fulfilling the educative purpose for which his Student visa was granted. That first marriage plan ended in August 2017 with the termination of the relationship. Subsequently, on 18 September 2018, the applicant married Sarah Hamdach; she is not the same person the applicant planned to marry in September 2017.

21. Having considered the evidence relevant to the circumstances in which the ground for cancellation arose, the Tribunal gives weight to those circumstances and this consideration in favour of cancellation of the visa.

    Past and present behaviour of the visa holder towards the Department

22. The evidence before the Tribunal does not indicate the applicant has been uncooperative with the Department or Departmental staff. The applicant responded to the Department’s NOICC within the required time. Consequently, the Tribunal gives weight to the applicant’s past and present behaviour towards the Department in favour of not cancelling the visa.

    Whether there would be consequential cancellations under s.140

23. There is no evidence that any person’s visa would be cancelled under s.140 of the Act as a consequence of cancellation of the applicant’s visa pursuant to s.116 of the Act: that is the case because there is no evidence that another person holds a visa as a consequence of being a member of the applicant’s family unit and therefore, no person is at risk of their visa being cancelled under s.140 as a result of cancellation of the applicant’s visa. The Tribunal gives this consideration neutral weight in this decision.

    Whether there are mandatory legal consequences of a decision to cancel the applicant’s visa

24. If the visa is cancelled the applicant will become an unlawful noncitizen and may be liable for detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia. The applicant will also be affected by the operation of s.48 of the Act in that the applicant will have limited options to apply for further visas whilst in Australia, and the applicant may be required to return to his home country. Pursuant to s.48, the applicant will not be able to apply for some visas onshore after cancellation, and unless the applicant can show that he meets Public Interest Criterion 4013, the applicant may be prevented for a specified period of time from receiving a grant of particular temporary visas. The Tribunal has had regard to this consideration and any adverse consequences that may flow to the applicant by operation of the Australian law referred to in this paragraph. Any such consequence would arise lawfully, and be intended lawful consequences resulting from the ordinary operation of Australian law; therefore, the Tribunal gives this consideration neutral weight in respect to cancellation of the visa.

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

25. The applicant has a child living in Australia; she was born on 16 May 2019. Her parents married in Australia on 18 September 2018. The child’s mother is a permanent resident in Australia. The applicant did not indicate in evidence that the welfare or best interests of his daughter would be compromised by the cancellation of his visa. In evidence the applicant informed the Tribunal that he would not leave his wife and daughter in Australia if his visa is cancelled; and his wife and daughter would depart Australia and live as a family with him in Lebanon. 

26. The applicant’s wife was present throughout the hearing. Consequently, the child’s mother heard her husband’s evidence. She heard her husband give evidence to the effect that he would not leave his wife and child in Australia if his visa is cancelled and that instead of them continuing to live in Australia, they would depart Australia and live with him in Lebanon.

27. The applicant’s wife, aware of the contents of her husband’s evidence, made it clear to the Tribunal that she supported her husband’s evidence; and, she did not indicate to the Tribunal that she and her daughter would refuse to depart Australia and take up residence in Lebanon with her husband if the visa is cancelled; the evidence, considered as a whole was to the contrary, that the mother and daughter would leave Australia of their own accord to live in Lebanon with the applicant. The child’s mother did not indicate to the Tribunal that the best interests or welfare of her daughter would be the compromised by cancellation of the visa.

28. The Tribunal is not satisfied on the evidence that cancellation of the applicant’s visa, if it resulted in the applicant and his wife and daughter departing Australia and living together as a family in Lebanon, would place Australia in breach of its international obligations such as protecting the rights of children or Australia’s non-refoulement obligations. Accordingly, the Tribunal gives this consideration neutral weight in this decision.

    Consequences of cancellation of a permanent visa

29. The relevant visa held by the applicant is a temporary Student visa, consequently this consideration is irrelevant to the decision, and the Tribunal gives it neutral weight in this review.

    Any other relevant matters

30. The Tribunal has considered the whole of the evidence, and the Tribunal is satisfied there is no relevant matter before the Tribunal that has not been considered in reaching this decision.

31. Having regard to the totality of the forgoing considerations and considering the evidence as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Peter Haag
    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.