Sa'adeh (Migration)

[2019] AATA 6750

Sa'adeh (Migration) [2019] AATA 6750 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmad Yousef Husain Sa'adeh

CASE NUMBER:  1704417

HOME AFFAIRS REFERENCE(S):          BCC2017/386635

MEMBER:Lynda Young

DATE:3 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 03 October 2019 at 8:24pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – enrolment in the higher education sector – consideration of discretion – genuine intention to study – significant breach – knowledge of visa conditions – responsibility of visa holder – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 March 2017 (decision), made by a delegate of the Minister for Immigration and Border Protection 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 applicant’s visa was subject to condition 8516 of Schedule 8 to the Migration Regulations 1994 (the Regulations), requiring the applicant to continue to satisfy the primary criteria for the grant of the visa. The applicable criteria included subclause 573.223(1A) or subclause 573.231 of Schedule 2 to the Regulations, requiring the applicant to be enrolled in a bachelor or master’s degree course, or a course of study that was a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A (IMMI 14/015) (enrolment criteria).

3. Having satisfied the enrolment criteria by his enrolment in a Master of Information Technology at the University of Newcastle, the applicant’s visa was granted on 13 April 2015.  On 21 December 2015, the applicant’s enrolment in that Master of Information Technology course was cancelled by the University of Newcastle.

4. On 24 February 2017, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) under s.119 of the Act on the basis it appeared the applicant had failed to comply with visa condition 8516 as, on evidence obtained from the Provider Registration and International Student Management System (PRISMS), he had not continued to satisfy the enrolment criteria after cancellation of his enrolment on 21 December 2015. The applicant responded to the NOICC on 2 March 2017 (NOICC response).

5. On 6 March 2017, the delegate cancelled the visa under s.116(1)(b) of the Act on the basis the applicant had breached visa condition 8516 by not continuing to be enrolled in a course of study that was a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A after cancellation of his Master of Information Technology enrolment on 21 December 2015, and the grounds in favour of cancellation outweighed the grounds against cancellation.

6. The applicant applied to the Tribunal for review of the decision on 10 March 2017, and attached to his application, a copy of the Notice of Cancellation and the Decision Record (together, application). The issue in the present case is whether the ground for cancellation under s.116(1)(b) of the Act is made out, and if so, whether the visa should be cancelled.

7. The applicant appeared before the Tribunal on 18 March 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

8. The applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing.

9. For the following reasons, the Tribunal has concluded the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

ISSUES

10.Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b).

11.Section 116(1)(b) provides for cancellation of a visa where ‘its holder has not complied with a condition of the visa.’ Visa conditions for each subclass are identified in the relevant part of Schedule 2 to the Regulations, and described in Schedule 8 to the Regulations.

12.In this case, condition 8516 was imposed on the applicant’s student visa.

13.Condition 8516 requires that the applicant must ‘continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa’. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

14.Relevantly, it was a criterion for the grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

15.The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 14/075. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 14/015.

16.IMMI 14/015 specifies the types of courses eligible for the Subclass 573 visa are:

a.Diploma (Higher Education)

b.Advanced Diploma (Higher Education)

c.Bachelor Degree

d.Graduate Certificate (Higher Education)

e.Graduate Diploma (Higher Education)

f.Associate Degree

g.Masters by Coursework.

17.If satisfied the ground for cancellation in s.116(1)(b) is made out then, 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, having regard to matters specified in the Act or regulations that are required to be considered and all information relevant to the exercise of the discretion in the circumstances of the case, including matters raised by the applicant and matters of government policy.

18.There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. Matters to which the Tribunal has regard in considering whether to exercise its discretion to cancel the applicant’s visa include matters raised by the applicant and the matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, including:

a.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;

b.the extent of compliance with visa conditions;

c.degree of hardship that may be caused (financial, psychological, emotional or other hardship);

d.the circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;

e.past and present behaviour of the visa holder towards the department;

f.whether there would be consequential cancellations under s.140;

g.whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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;

h.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;

i.if it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;

j.any other relevant matters.

19.The issues for the Tribunal’s determination in this case are:

a.does the ground for cancellation in s.116(1)(b) of the Act exist?

b.if the ground for cancellation in s.116(1)(b) of the Act exists, should the discretion to cancel the visa be exercised?

EVIDENCE ON THE APPLICATION

20. The Tribunal received a copy of the Department’s cancellation file, which relevantly included the NOICC and applicant’s NOICC response.
21. The Department, by it’s NOICC dated 24 February 2017:
1. notified the applicant it intended considering cancellation of his visa as it appeared from PRISMS his confirmation of enrolment in relation to course Master of Information Technology was cancelled on 21 December 2015 by the University of Newcastle and, since that time, he had not held enrolment in a course of study satisfying the criteria is subclause 573.223(1A) or subclause 573.231 of Schedule 2 to the Regulations, and accordingly it appeared the applicant had not continued to be a person who would satisfy the primary criteria for the grant of his visa, possibly breaching condition 8516;
2. set out, as the matters the delegate would take into account in considering whether to cancel his visa, the PAM3 matters;
3. invited the applicant to provide his written response to the NOICC within five working days, addressing the identified ground(s) for cancellation, reasons why his visa should not be cancelled, the PAM3 matters, and any other matter he considered relevant;
4. notified the applicant his response would be taken into account in deciding whether to cancel his visa, and if he did not respond, the decision would be made on the information then held by the Department;
5. outlined the consequences should the applicant’s student visa be cancelled.

22.The applicant, in his statement emailed to the Department in response to the NOICC on 2 March 2017 with supporting documents, stated:

“I came to Australia to study Master of Information Technology and English at Newcastle University.

I started the English course at Newcastle University on 28/04/2015.

At that time, I found that Edith Cowan University have a Master of Cyber security available to study. It was my dream to do that course. I applied to Edith Cowan University to study my Masters degree there. My application was accepted and they sent me the letter of offer on 13/10/2015 (see attached).

I told the admissions department of Newcastle University that I want to study this course at Edith Cowan University. They then instructed me to apply for a release letter. I applied, and received the release letter on 21/12/2015 (see attached).

I then went to register at Edith Cowan University and they informed me that I needed a 6.5 in IELTS. But I don't have it.

On 01/02/2016 I enrolled in an English course at North Sydney English College to improve my English so I could achieve a 6.5 in the IELTS exam. I completed the course on 10/04/2016 and have a certificate of completion (see attached).

I sat for the IELTS Exam on 07/05/2016 but my result was not enough. I only got a 4.5 which doesn't allow me to study the Masters degree.

On 14/06/2016 I enrolled in another English Course at Mercury Colleges to improve my English (COE attached). In that time I became stressed and home sick so I went to visit my family.

After I came back to Australia, I enrolled at the Southern Cross School of Business on 26/09/2016 to study a Diploma of Leadership and Management (COE attached). I have been doing all my assessments and go to the classes on time and study hard. At this time I am also studying for the IELTS exam to get a score of 6.5 to allow me to study my Master degree. I booked for the test on 21/02/2017 and the exam date is on the 04/03/2017.

This has all happened since I came to Australia, you can see all my improvement attached.

I don't think my visa should be cancelled because I was unaware that I was required to change my visa to another visa. I thought that my only requirement was to apply for a new one when my current one expired. Also the college that I'm studying at right now didn't advise that I needed to change my visa when they give me the COE.

All this time I have been studying English and trying to get a 6.5 in IELTS as I mentioned before. I booked an IELTS exam on 21/02/2017 before I received the notice of cancellation letter.

I really want to finish my Diploma in Leadership and achieve a 6.5 in my IELTS exam. So after that I can continue my dream and study Master of Cyber Security.

My goal when I complete my Masters degree is to go back to Jordan or a Gulf country to work as an IT professional.”

23.The supporting documents provided by the applicant with his NOICC response were:

a.Edith Cowan University Course Offer for Master of Cyber Security, dated 13 October 2015 (ECU Offer), conditional on the applicant satisfying ECU’s English language requirements by one of: the provision of an English language test result, an Academic IELTS at an overall band score of 6.5 (no individual band less than 6.0), a TOEFL iBT minimum score of 84 with no band below 17 or  a PTE with a minimum overall score of 64 with no individual score less than 58;

b.Statement of Attainment from North Sydney English College for completion of IELTS Preparation Course, dated 8 April 2016;

c.IELTS Academic Test Report Form, dated 19 May 2016, reporting the applicant’s examination on 7 May 2019 resulted in an overall band score of 4.5;

d.COE 85421F33 obtained 11 October 2016, at Southern Cross School of Business, for the Diploma of Leadership and Management course starting 26 September 2016 and completing 8 September 2017;

e.Southern Cross School of Business, Student Intervention Agreement dated 27 February 2016, providing for SCSB, who considered the applicant was at  “at risk” of not satisfactorily meeting course progress requirements, by way of assisting the applicant addressing that risk, to grant extensions to the submission dates for the applicant’s assessments;

f.Tax Invoice and Receipt for payment of test fee to Navitas on 21 February 2017 for IELTS test on 4 March 2017.  This payment pre-dates the NOICC;

g.Letter of Release from Studies from the University of Newcastle, dated 21 December 2015, stating:

“The University of Newcastle (00109J), as your original education provider, has approved your request to withdraw from all studies in the ELICOS program [083517F] effective 21/12/2015. We note your intention to commence studies at the International Institute of Business & Technology Australia in the Academic English Certificate IV [086255K] progressing into Edith Cowan University in the Master of Cyber Security [083335A].

Your Confirmation of Enrolment (CoE) for the University of Newcastle has now been cancelled.

Please be aware that you must contact the Department of Immigration and Border Protection and provide a Confirmation of Enrolment certificate from your new education provider.”

h.COE 80B0BF80 obtained 10 June 2016, at Mercury Colleges Pty Ltd, for General English (Beginner to Advanced) (4 to 48 weeks), commencing 14 June 2016, and completing 3 July 2016

24. On 6 March 2017, the delegate cancelled the applicant’s student visa, and a copy of the Notice of Cancellation and decision were emailed to the applicant. The decision set out the following:

a.the applicant, having satisfied the delegate he met the requirements of subclauses 573.223(1A) or 573.231, was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 13 April 2015, with a stay period to 2 August 2017;

b.the Department notified the applicant of its intention to consider cancellation of his visa on 24 February 2017, and invited him to respond in writing;

3. the applicant’s response to the NOICC provided reasons why his visa should not be cancelled;

d.on evidence obtained from PRISMS, the applicant, in breach of condition 8516, had not continued to be a person who would satisfy either subclause 573.231 or 573.223(1A) as he had not been enrolled in a bachelor's degree or master's degree course or course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A after his confirmation of enrolment (CoE) in relation to course Master of Information Technology was cancelled by the University of Newcastle on 21 December 2015;

e.the delegate was satisfied the ground for cancellation in s.116(1)(b) existed;

f.when applying for this Student visa, the applicant stated the purpose of his travel to and stay in Australia was to study;

g.there was no evidence of non-compliance by the applicant with his visa conditions other than visa condition 8516 after 25 December 2015;

h.the applicant stated his visa should not be cancelled because:

i.he was unaware, and had not been advised by his current education provider upon being issued a new CoE, he was required to change his visa other than if his visa expired. In response, the delegate reasonably expected the applicant was aware his visa was subject to condition 8516 as it applied to all student visas, and ensured the student did not provide evidence to meet requirements at initial visa grant, only to change these arrangements after arrival in order to avoid visa requirements;

ii.he was studying English to obtain the pre-requisite 6.5 IELTS test for enrolment in ECU’s Master of Cyber Security course. The delegate noted the applicant’s English course enrolment did not satisfy the relevant criteria;

i.as the applicant remained in breach of condition 8516 at the date of decision, his degree of non-compliance was significant;

j.the applicant’s NOICC response had not raised or addressed any detail regarding hardship that may be caused to him or his family if his visa were cancelled.  The delegate accepted some hardship would likely result from cancellation should the applicant be required to depart Australia, but a Bridging Visa E, for which the applicant may be eligible, would allow him to remain lawfully in Australia to finalise outstanding matters.

k.the delegate accepted the applicant, upon cancellation, would become an unlawful noncitizen liable for detention under s189 or removal under s198 of the Act unless he voluntarily departed Australia, and s48 of the Act would limit his options for visa applications made onshore. Cancellation of the visa would not, however, subject the applicant to the ordinarily-imposed three-year ban on the grant of temporary visas as he would not be subject to Public Interest criterion 4013;

l.the applicant, in response to the Department's NOICC, stated:

iii.he came to Australia to pursue courses in English and Master of Information Technology and commenced studying his English course on 28 April 2015;

iv.he was interested to study in a Master of Cyber Security course at Edith Cowan University, and received a letter of offer from Edith Cowan University on 13 October 2015.

v.he received a release letter from The University of Newcastle on 21 December 2015.

vi.when he sought to enroll with Edith Cowan University, they requested a score of 6.5 in IELTS test, which he did not have;

vii.on 1 February 2016, he enrolled to study in an English course at North Sydney College in order to improve his English level. He completed this English course on 10 April 2016, sat in an IELTS exam on 7 May 2016 and scored 4.5.

viii.he then enrolled in another English course at Mercury College on 14 June 2016. At that time, he was stressed and home sick, so decided to visit his family. Upon return, he enrolled at Southern Cross School of Business on 26 September 2016 in a Diploma of Leadership and Management, and has been studying and attending classes. He is also studying English and preparing for his IELTS exams. He booked an IELTS exam on 4 March 2017.

ix.he wishes to complete his Diploma course and achieve an IELTS test score of 6.5 so he can continue to follow his dream of studying in a Master of Cyber Security course, and hopes he can complete his Master's degree and would work as an IT professional when he comes back to his country, Jordan.

m.the delegate did not consider the applicant’s NOICC response mitigated his visa breach and the explanation of the circumstances in which the ground of cancellation arose did not provide a reason to not cancel his visa;

n.there was no information before the delegate to indicate anything of relevance regarding the applicant’s past and present behaviour toward the Department;

o.cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders;

p.none of the information available to the Department indicated that cancellation would result in a breach of Australia’s international obligations;

q.the delegate was unaware of any other relevant factors in relation to cancellation;

r.the delegate was satisfied there was a ground for cancelling the applicant’s visa, and satisfied the grounds for cancelling the visa outweighed the grounds not to cancel the visa.

25.The applicant lodged the application with the Tribunal on 10 March 2017.

26.On 11 March 2019, the applicant’s representative (representative) emailed to the Tribunal, written submissions dated 5 March 2019, attaching:

a.a copy of the applicant's passport bio page;

b.University of Newcastle Offer of Admission – Conditional Letter of Offer dated 23 January 2015, for ELICOS commencing 28 April 2015, followed by Master of Information Technology commencing 25 January 2016, and completing 2 January 2017;

c.Edith Cowan University Course Offer for Master of Cyber Security 13 October 2015, previously provided to the Department;

d.Letter of Release from Studies from the University of Newcastle dated 21 December 2015, previously provided to the Department;

e.Statement of Attainment, North Sydney English College, IELTS Preparation Course dated 8 April 2016, previously provided to the Department;

f.IELTS Academic Test Report Form dated 19 May 2016, overall band score 4.5, previously provided to the Department;

g.COE 80B0BF80 obtained 10 June 2016, at Mercury Colleges Pty Ltd, for General English (Beginner to Advanced) (4 to 48 weeks), commencing 14 June 2016, completion 3 July 2016, previously provided to the Department;

h.COE 85421F33 obtained 11 October 2016, at Southern Cross School of Business, Diploma of Leadership and Management, Course Start Date: 26/09/2016 and Course End Date: 08/09/2017, previously provided to the Department;

i.Jordan University Hospital, Discharge Summary, dated 20 May 2017, for patient: 63 year old male [name not translated but identified in the submission as the applicant’s brother], 11 days post-Coronary Artery Bypass Graft on 9 May 2017, complaining of palpitations;

j.Jordan University Hospital, Discharge Summary, dated 14 May 2017, for patient: 63 year old male [name not translated but identified in the submission as the applicant’s brother], admitted 6 May 2017 for Coronary Artery Bypass Graft on 9 May 2017 secondary to multivessel disease;

k.Dar al-Salam Hospital, Medical Report for admission of patient: 58 year-old [name not translated but identified in the submission as the applicant’s mother], presented on 30 July 2017 with ankle pain five days post-fall, for surgical treatment of resulting fracture. Date of Discharge: 31 July 2017;

l.University of Hertfordshire Offer to Study date 20 February 2018, MSc (SW) Cyber Security with Sandwich Placement, Start date: September 2018, Length of course: 2 Years.  Offer conditional on inter alia, IELTS test score of 6.0 with no less than 5.5 in any band;

m.COE 9CF58522 obtained 10 July 2018 for enrolment in Southern Cross School of Business course Diploma of Leadership and Management. Course Start Date: 09 July 2018, End Date: 10 May 2019; and

n.Applicant's statement dated 1 March 2017, previously provided to the Department.

27.The representative submitted, relevantly:

a.the applicant arrived in Australia in April 2015 to study a Master of Information Technology (COE 700130628) and English for Academic Purposes (COE 700A6C26) at the University of Newcastle.  His enrolment in both those courses was cancelled on 21 December 2015;

b.the applicant attempted to register with Edith Cowan University, but could not meet the 6.5 IELTS test score required, and consequently, on 1 February 2016, he enrolled in an English course at North Sydney College, aiming to improve his English and achieve the required IELTS score to register at Edith Cowan University;

c.the applicant completed the English course on 10 April 2016, sat an IELTS exam on 7 May 2016, and scored 4.5.  He then enrolled in another English course at Mercury College on 14 June 2016.  Being very stressed and homesick, he visited family in Jordan, returned on 26 September 2016, and enrolled in a Diploma of Leadership and Management at Southern Cross School of Business. He studied in that course for six months prior to receiving the NOICC;

d.the applicant did not ignore the NOICC, but responded in writing as instructed;

e.in May 2017, the applicant's step-brother and financial supporter, was admitted to hospital for open heart surgery and subsequently unable to work for the next year, during which period the applicant did not have access to funds.

f.the applicant struggled with depression for a long period, exacerbated by news of his mother's illness in Jordan, and felt directionless. He considered studying in the UK and obtained an offer in February 2018 for a Master (SW) Cyber Security with Sandwich Placement at the University of Hertfordshire. He did not take up this offer as he did not want to give up on his dream to study in Australia and instead in July 2018, re-enrolled in the Diploma of Leadership and Management at Sothern Cross School of Business. He has been regularly attending classes to date, and is a genuine student.

g.the applicant complied substantially with his visa conditions and the regulations. As in Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258 (at 271), followed in Baidakova v MIMIA [1998] FCA 1436, the particular circumstances of the applicant should be considered. For example, the circumstances considered by Sackville J to be relevant in Kim v Witton included:

·            the nature of the breach of condition

·            the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted

·            whether or not the applicant deliberately flouted the condition; and

·            if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.

h.“the applicant is seen to have breached condition 8516.”

i.the applicant did not deliberately flout condition 8516: his breach was unintentional and made in the absence of accurate knowledge and sound advice and caused by the applicant failing to appreciate he was in breach of the condition. The applicant’s lack of understanding of the meaning of this condition as it applied to his visa, and the absence of sound advice from his then] migration agent were the contributors to his failure to appreciate the breach;

j.when considered by reference to the purpose for which the Visa was granted, the breach was insignificant as the applicant fully intended to maintain enrolment in a Higher Education course, as evidenced by his attempted enrolment with Edith Cowan University, and his repeated attempts to meet the English requirements for that enrolment;

k.before the cancellation of his visa, the applicant at all times satisfied the primary condition for the grant of the visa. The applicant was at all times enrolled in a course of study that is registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). The applicant was a student at all times, and always maintained enrolment and attendance as a student;

l.the applicant wishes to complete his current course of Diploma of Leadership and Management and enroll in a Master of Cyber Security, as has always been his intention.

m.in response the delegate’s claim that there is no information before them to indicate the applicant's past and present behavior towards the Department, the applicant has always complied, to the best of his knowledge and understanding, with the requests made by the Department. He has always responded to correspondence and has at all times remained a genuine student insofar as he has always maintained enrolment and attendance in a CRICOS course.

n.it was “acknowledge[d] that by enrolling in a Diploma of Leadership and Management that the applicant was in breach of condition 8516 which specifies that 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.”;

o.the applicant did not knowingly breach condition 8516, because the applicant did not understand the need to be enrolled in a Higher Education course. If he had known, the applicant would have informed the Department;

p.the applicant, through no fault of his own, was unable to fulfil his enrolment in a Higher Education course (Master of Cyber Security) because he did not meet its IELTS score requirement, but fully intended to address that, as evidenced by his subsequent enrolment and attendance of an English course in North Sydney College;

q.the applicant was not advised by his [then] migration agent that he was required to apply for a new student visa as he was not maintaining enrolment in a registered course at the same level or at a higher level than the course for which he was granted the visa. Therefore although the applicant breached condition 8516, it was due to a lack of awareness of what that condition actually meant as well as the absence of good advice from his [then] migration agent.

28.At the hearing on 18 March 2019, the applicant submitted additional documents:

a.Letter from Professor M. Abu Abeeleh of Jordan University Hospital dated 14 March 2019, providing medical information for Wajeeh Yousef Husain Sa’adeh, a 63 year old gentleman, admitted 6 May 2017 to 14 May 2017 for Coronary Artery Bypass Graft secondary to severe Coronary Artery disease. Stated to also be diabetic, hypertensive and suffering chronic kidney disease, requires regular follow-up.

b.Dar al-Salam Hospital, Medical Report dated 16 March 2019 prepared by Dr. Mohammad Shaheen for admission of patient Layla Muhammad Abufarash, a 58 year-old female patients admitted 30 July 2017 complaining of right ankle pain secondary to fall 5 days prior. Admitted and underwent open reduction and in situ fixation surgery under general anesthesia. Discharge 31 July 2017 stable.

c.Southern Cross school of business statement of attainment for the applicant issued 7 March 2019 for units completed in the diploma of leadership and management course.

d.Email of 18 March addressed to the applicant from visa plus recording a $6000 deposit from the applicant’s brother on Thursday, 20 March 2019.

29.The applicant’s evidence at hearing, not previously included in his statement or other material is summarised below, relevantly:

a.he has not obtained the minimum English requirements by IELTS testing for entry into ECU, but his present studies will provide an alternate pathway to meet the English requirements;

b.no courses are available in either Jordan or the broader middle east in Cyber Security;

c.returning to his home country without having achieved any qualifications would be viewed, in the applicant’s culture, as a disgrace. It would also likely cause a rift in the relationship between him and his stepbrother, who is financing his stay in Australia. Paying for his studies in Australia has caused his stepbrother significant financial burden in circumstances where his stepbrother has had significant medical issues;

d.he should not have taken advice from other students and education agents, but should have sought legal advice. He understand now that is his problem;

e.the applicant was asked about the final paragraph of the Letter of Release, which stated:

“Please be aware that you must contact the Department of Immigration and Border Protection and provide a Confirmation of Enrolment certificate from your new education provider.”

In response, the applicant agreed the Letter of Release informed him to contact the Department.  When he received letter, he immediately sent it on to his agent, who advised him that was all that was needed for him to be able to activate the offer from ECU.  His agent did not advise him he needed to contact the Department at all. So he didn’t.  Had he been advised to contact the Department, he would have.

f.if he had not genuinely wanted to study, he would not have enrolled into two additional English courses and taken two IELTS tests, or enrolled in the Diploma of Leadership and Management course after his visa was cancelled.  These courses and tests imposed significant time and money commitments on him, all of which were and continue to be met by him after his visa was cancelled and there was nothing requiring him to make that effort.

g.the applicant presently holds a bridging Visa E granted on the basis of this application to the Tribunal.

Does the ground for cancellation exist?

s.116(1)(b) - non-compliance with conditions

30.To his credit, the applicant has never disputed the factual basis for the existence of the ground for cancellation. He has provided a letter to confirming the cancellation of his enrolment on 21 December 2015 to the Tribunal. His representative’s submissions frankly concede the ground for cancellation exists. The undisputed evidence before it satisfies the Tribunal is the applicant ceased to be an eligible higher degree student when his enrolment at the University of Newcastle was  cancelled on 21 December 2015.

31.Since the University Newcastle cancelled his enrolment on 21 December 2015, the applicant has enrolled in three courses, two English preparation courses and a Diploma of Leadership and Management. The English preparation courses are not higher education sector courses, and the Deployment Leadership and Management course is described in the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) as a vocational and further education sector diploma, not a higher education sector diploma. The Tribunal is accordingly satisfied the applicant’s enrolments subsequent to 21 December 2015 also do not meet the enrolment criteria.

32.Accordingly, the evidence satisfies the Tribunal the applicant, in breach of condition 8516, has not been enrolled in, or the subject of a current offer of enrolment in a bachelor or master’s degree course, or a course of study that was a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A, since 21 December 2015.

33.For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists.

34.As that 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 DISCRETION

35.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.

36.The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant and his representative, and matters 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

37.According to the decision record, during the visa application process, the applicant stated the purpose for his travel to and stay in Australia was study. The applicant’s statement and his evidence at hearing as well as his representative’s submissions are consistent, and the Tribunal is satisfied the applicant’s originally intended purpose for his travel to and stay in Australia, was study.

38.The Tribunal has found the applicant has not been enrolled in a course satisfying the enrolment criteria since December 2015, a period exceeding 14 months prior to cancellation. Student visas are granted for the purpose of non-citizens and non-permanent residents studying towards, and achieving, an educational qualification in Australia. That purpose cannot be achieved unless the visa holder is enrolled in a registered course of study satisfying the enrolment criteria. Taken in that context, the Tribunal finds the applicant’s failure to be enrolled in a registered course of study satisfying the enrolment criteria for more than 14 months pre-cancellation is significant, and weighs in favour of cancellation.

39.Other than for a brief period following cancellation of his Visa, the applicant has remained enrolled in CRICOS registered courses for the period he has been onshore. The applicant’s evidence, which the Tribunal accepts, is that his intention in coming to and remaining in Australia is study, and has acted consistently with that intention by continuing to study despite cancellation of his Visa. The Tribunal is satisfied the applicant has demonstrated he is genuinely remaining in Australia for the purpose of study. No other reason for his continued stay in Australia is suggested in the evidence.

40.The Tribunal is satisfied on the evidence before it, the purpose for the applicant’s travel to a stay in Australia, both originally and presently, was to study. Although the Tribunal accepts the applicant’s evidence he will face disgrace should he return home without qualifications after being in Australia to study for more than four years, the Tribunal does not view these considerations as providing a compelling need for the applicant to travel to and remain in Australia.

41.There is nothing in the evidence before the Tribunal suggesting the applicant has a compelling need to remain in Australia or that he had a compelling need to travel to Australia. The Tribunal gives this consideration weight in favour of cancelling the Visa.

The extent of compliance with visa conditions

42.The only instance of non-compliance identified in the evidence before the Tribunal is the applicant’s failure to comply with visa condition 8516.  Although the evidence does not satisfy the Tribunal the applicant breached any other condition imposed on his visa, the applicant’s breach of this condition extended for more than 14 months prior to cancellation. Although the applicant remained enrolled during this period, that does not negate the failure to comply with condition 8516. The non-compliance is significant and the Tribunal weighs this factor in favour of cancelling the visa.

43.Other than his non-compliance with condition 8516, there is no evidence before the Tribunal of any non-compliance with any other conditions of his visa. The Tribunal weighs this factor in favour of not cancelling the visa.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

44.The applicant’s evidence was that, returning home without qualifications in his hand after four years during which he was in Australia to study would result in him suffering disgrace on his return home. The applicant has also given evidence that he has continued to expend monies on the courses and testing in attempts to satisfy the enrolment criteria for the Edith Cowan University offer. The Tribunal accepts the applicant would suffer psychological and emotional hardship as a result of returning to his home country in disgrace, and would also suffer financial hardship resulting from the expenditure on courses without any qualification resulting. The Tribunal also accepts the applicant’s evidence that cancellation would likely result in a rift in the relationship between he and his stepbrother who is financing is studies in Australia.

45.The Tribunal considers these specific hardships weigh in favour of not cancelling the Visa.

46.The Tribunal accepts visa cancellation ordinarily results in the visa holder becoming unlawful and liable for detention under s.189 and removal under s.198 unless the visa holder voluntarily departs Australia or holds a bridging visa. A review applicant before the Tribunal is eligible for a Bridging Visa E which would remain in force for 35 days after the Tribunal makes its decision on the review application or the applicant departs Australia, whichever is the earlier. The Tribunal is accordingly not satisfied the applicant would immediately become unlawful or liable to detention or removal upon cancellation, or be caused any hardship as might otherwise result.

47.The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Act, which significantly limits the classes of visa for which he may apply onshore. The Tribunal accepts, as stated in the decision record, cancellation of the applicant’s visa would not subject the applicant to public interest criterion 4013 which would otherwise prevent him re-entering Australia for up to 3 years.

48.The Tribunal considers any hardship as may be caused by these intended consequences of cancellation weighs in favour of not cancelling the visa

Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

49. The applicant has explained his failure to comply with condition 8516 as arising from a lack of understanding of that condition and the need to take steps to notify the Department of his change in course, and a failure of his then migration agent to advise him as to the proper course. The Tribunal accepts that evidence and also accepts, as submitted by his representative, the applicant did not knowingly breach condition 8516, because the applicant did not understand the need to be enrolled in a Higher Education course. If he had known, the applicant would have informed the Department. The applicant was not advised by his migration agent that he was required to apply for a new student visa as he was not maintaining enrolment in a registered course at the same level or at a higher level than the course for which he was granted the visa. The Tribunal accepts that, although the applicant breached condition 8516, it was due to a lack of awareness of what that condition actually meant as well as the absence of good advice from his migration agent.
50. As stated in the Decision Record, it is reasonable to expect the applicant to have knowledge of the conditions attaching to his Visa and the need to comply with them. This is not a situation in which the applicant had no control over the circumstances that led to the ground for cancellation arising.  However, the Tribunal considers that although the applicant was directly responsible for creating the circumstances that led to the ground for cancellation arising, he was not aware that his actions would lead to the ground for cancellation coming into existence and his actions were not undertaken with any intention other than enrolment with Edith Cowan University.
51. The Tribunal is satisfied, on the basis of the evidence before it, that the applicant has fully explained the circumstances in which ground for cancellation arose and although the Tribunal considers the applicant was directly responsible for creating the circumstances leading to that ground for cancellation arising, the Tribunal is satisfied those actions were undertaken by the applicant ignorant of, and without intending for, those actions creating a ground for cancellation.
52. As the applicant was directly responsible for creating the ground for cancellation, but did so ignorant of the effect of his actions and without any intention other than to obtain enrolment at Edith Cowan University, which would have satisfied the enrolment criteria and condition 8516, the Tribunal weighs this factor in favour of not cancelling the Visa.

Past and present behaviour of the visa holder towards the department

53.There is nothing before the Tribunal suggesting the applicant’s past the present behaviour toward the Department was adverse. The Tribunal accepts the representatives submission that the applicant’s conduct towards the department, specifically in responding to, rather than ignoring, the NOICC, is conduct of an appropriate nature. The Tribunal weighs this factor in favour of not cancelling the Visa.

Whether there would be consequential cancellations under s.140

54.On the evidence before the Tribunal, there are no persons in Australia whose visas would, or may, be cancelled under s.140

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

55.The Tribunal is satisfied cancellation of the applicant’s visa would not subject the applicant to public interest criterion 4013, which would ordinarily prevent a visa applicant from re-entering Australia for up to 3 years post-cancellation. The Tribunal accepts the applicant’s ability to remain in Australia may be limited but he would not on cancellation become, whilst his Bridging Visa E remains in-force, immediately unlawful and liable to detention under s.189 of the Act or removal under s198 of the Act.

56.The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Act, which significantly limits the classes of visa for which he may apply onshore.

57.The Tribunal gives this consideration weight in favour of not cancelling the 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

58.Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

59.'Non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

60.The applicant stated at hearing his only reason for remaining in Australia was to complete studies, and he would then return to his home country. He stated he would suffer difficulties if he returned before completing his studies, specifically being disgraced, and possibly causing a rift in the relationship between him and his stepbrother. Those matters would not attract non-refoulement obligations.

61.The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

62.There is no evidence before the Tribunal that the cancellation of the applicant's visa would result in Australia breaching any obligations regarding the best interests of children.

63.The Tribunal considers these factors weigh neither in favour of nor against cancellation.

If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;

64.The applicant’s visa is a not a permanent visa.

Any other relevant matters.

65.The evidence before the Tribunal does not disclose any other relevant matters.

Conclusion

66.In circumstances where the applicant has endeavoured to meet the enrolment criteria stipulated by Edith Cowan University, for enrolment into a course which would have satisfied both the enrolment criteria and condition 8516, and has other than for a short period following cancellation, remained enrolled in CRICOS courses for the period he has been onshore including after visa cancellation, the Tribunal considers the applicant has demonstrated he genuinely intends to progress his studies to a Master of Cyber Security and is a genuine student who should have his visa reinstated, and be given the opportunity to complete his studies accordingly.

67.Taken together and considered as a whole, the Tribunal is satisfied the matters weighing in favour of cancellation of the visa are outweighed by the matters weighing against cancellation of the visa.

68.The Tribunal concludes the visa should not be cancelled.

DECISION

69.The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Lynda Young
Member