Tamimi (Migration)

[2018] AATA 5204

Tamimi (Migration) [2018] AATA 5204 (17 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmed Tamimi

CASE NUMBER:  1709299

HOME AFFAIRS REFERENCE(S):           BCC2017/606769

MEMBER:Michelle East

DATE:17 October 2018

PLACE OF DECISION:  Perth

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 17 October 2018 at 12:45pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – 573 Higher Education Sector visa  –not enrolled in a registered course of study – breach of condition 8202– exceptional circumstances existed relating to loss of family members – applicant has a genuine intention to continue with studies–  satisfactory academic record – Decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 April 2017 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 delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 17 October 2018 to give evidence and present arguments.  The applicant’s brother also attended the hearing and gave evidence.

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

   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 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?

6. 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).

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

8. The delegate’s decision record (a copy of which was provided to the Tribunal by the applicant) states that the applicant was granted a student visa on 29 January 2014.  He was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa on 16 March 2017.  In summary, the NOICC set out the statutory basis for the consideration of the cancellation of the applicant’s student visa and also that the Provider Registration and International Student Management System (PRISMS) indicated that the applicant had not been enrolled in a registered course of study since 2 February 2016.

9. The applicant responded to the NOICC by email on 24 March 2017.  The applicant agreed that he had ceased studying sometime during the middle of his second semester of study.  He said he had lost some ‘loved ones’ back home including his father.  He said his relationship with his mother deteriorated at this time and he also developed a passion for social work.  He said he volunteered in various capacities and then decided he would like to study politics and international relations.  He said his mother had financed his studies and he would hate to go home ‘disappointed for not being able to accomplish what I set out to do in Australia especially for the sake of my mother’.

10. On the evidence before the Tribunal the applicant was not enrolled in a registered course after 2 February 2016.  Accordingly the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

11. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

12. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach.

    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

13. The purpose of a student visa is to enable the visa holder to undertake study in Australia.  Having regard to the information before it, the Tribunal is satisfied the applicant travelled to Australia originally intending to study.  However, the Tribunal finds that the applicant was not fulfilling the purpose of his travel to and his stay in Australia because he had not been enrolled in a registered course of study from 2 February 2016.  The Tribunal is not satisfied that there are compelling reasons for the applicant to remain in Australia.

14. The applicant’s non-engagement in study for which his visa was granted and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

15. The applicant was granted the visa to undertake specific studies in Australia and has not done so since 2 February 2016.  The applicant has not complied with the primary condition of the visa granted to him.

16. Whilst the Tribunal notes the applicant’s explanation for his non-enrolment, specifically the loss of family members and relationship issues with his mother, it considers the condition of the applicant’s visa to be important because one of the primary reasons for holding a student visa is to be enrolled and to study and he has not done so for a significant period of time.

17. The Tribunal considers that this weighs heavily in favour of cancellation of the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members

18. The Tribunal questioned the applicant about possible hardship to himself or his family if his visa was cancelled.  Both he and his brother gave compelling evidence of the financial sacrifices their mother had made in order to support their studies.  They said she had raised them as a single mother and had sent them to an international school in Kenya with the intention of obtaining entry into a university overseas.

19. The applicant produced copies of his academic transcripts dating back to high school which demonstrated he was an outstanding student.  The applicant spoke of his original intention to undertake a Bachelor of Engineering (Chemical) with the intention of then studying medicine.

20. It was clear from the evidence of both the applicant and his brother that both sons wish to make their mother proud, particularly given the sacrifices she has made for them.  They were unable to articulate the effect it would have on them or their mother should the applicant’s visa be cancelled.

21. The brother gave further evidence of his sense of isolation in Australia and the impact it would have on him if his brother had to leave.

22. The applicant’s academic history has demonstrated a commitment to his studies prior to him ceasing in 2016.

23. The Tribunal is satisfied there would be significant hardship to both the applicant and his immediate family members and finds this weighs in favour of the applicant.

    Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control

24. The applicant has explained in his oral evidence the circumstances that preceded the cessation of his studies.

25. The applicant said his father passed away in September 2014.  He said that although his parents were separated he had a close relationship with his father.  He said he had two maternal aunts and an uncle who passed away during 2014 and 2015 and his grandmother passed away in 2016.  Both he and his brother gave evidence of the important role his grandmother played in their lives and the effect her passing had on them.

26. The applicant said this time was especially difficult for his mother and he was unable to talk to her and at different times became estranged. The brother said his mother would often talk to him about the applicant and he would then have to talk to the applicant about their mother which in turn, caused significant difficulty for him.

27. The applicant said he realised he didn’t enjoy engineering and had always had a passion for social justice work, having volunteered with NGO’s in Kenya.  Both the applicant and his brother gave evidence of their work in this field while they were at school.

28. The applicant said that after he ceased studying he sat in his room and did nothing.  He said he was lucky to have the support of a friend who gave him a room and supported him financially.

29. The applicant also gave evidence of a failed relationship in 2015 which further added to his difficult emotions at that time.

30. The Tribunal is satisfied based on the oral evidence provided that the circumstances in which the ground of cancellation arose were beyond the applicant’s control and finds this weighs heavily in favour of the applicant.

    Past and present conduct of the visa holder towards the Department

31. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

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

32. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.

33. The Tribunal is not aware of any reason why the applicant would not be able to return to Kenya.  The Tribunal affords little weight to this consideration in determining whether to cancel the visa.

    Whether there would be consequential cancellations under s.140

34. There is no evidence before the Tribunal that there would be consequential cancellations in this case.

    Whether any international obligations would be breached as a result of the cancellation

35. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Any other relevant matters

36. The applicant produced a letter of offer from Curtin University together with evidence of his eligibility for a Merit Scholarship for a Bachelor of Arts majoring in international relations.  The offer was for the second semester of 2017 and a substantial deposit has been paid.  The applicant confirmed his mother had paid the deposit.  He stated that the enrolment has been deferred pending the outcome of his application.

37. The applicant impressed the Tribunal with his candour and academic record.  He has clearly been an outstanding student in the past and wishes to continue his studies in Australia.

38. The Tribunal has carefully considered the documentary evidence provided by the applicant together with the oral evidence given by himself and his brother.   The Tribunal accepts that the applicant had a difficult time both before and after the cessation of his studies.  The Tribunal also notes the reasons for him ceasing his engineering studies and his desire to pursue a different career path.  The Tribunal also acknowledges the pivotal role the mother has played in both the applicant and his brother’s life and the effect cancellation would have on her and also the applicant and his brother.

39. The Tribunal notes the breach of condition 8202 of his visa and acknowledges the seriousness of breaching that condition.  However, after hearing the applicant’s oral evidence and that of his brother, the Tribunal has formed the conclusion that in this matter the visa should not be cancelled.  The Tribunal has placed significant weight on the applicant’s presentation at hearing together with his academic record and clear intentions for the future.

    DECISION

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

    Michelle East
    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.