Waked (Migration)

[2020] AATA 966

Waked (Migration) [2020] AATA 966 (2 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rayan Waked

CASE NUMBER:  1806882

HOME AFFAIRS REFERENCE(S):          BCC2017/3721117

MEMBER:Donna Petrovich

DATE:2 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 02 March 2020 at 3:37pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – sick relative – did not provide compelling reasons – did not seek deferral – little academic progress – financial issues – father could not pay fees – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with his visa condition 8202 by not maintaining his enrolment in a registered course of study and cancelled his visa under s.116(b) of the Act. 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 3 September 2019 to give evidence and present arguments.

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 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.

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

   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. The applicant is a 30 year old male citizen of Lebanon born on the 30 May 1988.  He has one sister who resides in Lebanon with his Mother and Father, and a large extended family. His father is a real estate developer and his mother assisted him in the business. He lives with his cousin and his wife, at [address deleted].  The applicant previously attended school in his home country of Lebanon and completed two subjects of a Finance/Marketing course. 

9. The applicants movement records indicate that the applicant was initially granted a Student (temporary) (Class TU) Higher Education Sector (subclss573) Visa on 23 July 2014.  The applicant was already in Australia at the time of visa grant having previously held a WB020 Bridging Visa and arrived in Australia on 2014 to pursue his studies. Relevantly, the Provider Registration and International Student Management System (PRISMS) records that the applicant enrolled in IELTS Preparation Course, and a Bachelor of Engineering and Technology and the evidence shows that he completed 2 years of study over 3 different course, and completed only one course in that timeframe, which the applicant told the Tribunal was a Cookery course, which he loved. The applicant returned to Lebanon and Dubai for a short time during 2016 for a holiday which was paid for by his father.

10. The applicant’s enrolment was cancelled on 30 April 2017 and his visa was cancelled on 7 March 2018.  The applicant had remained un-enrolled for a period of 8 months.

11. Condition 8202(2)(a) states that the visa holder meets the visa requirements if the visa holder is enrolled in a registered course.  Based on the evidence available to the Tribunal, including PRISMS and the applicant’s submission dated 20 December 2017, it finds that the applicant has not been enrolled in a registered course of study since 30 April 2017, in breach of his visa conditions.

12. On 6 December 2017 the applicant was sent a notice of intention to consider cancellation of Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa under s.116 of the Migration Act 1958 (The NOICC). In his response to the NOICC on the 20 December 2017 the applicant conceded that there were grounds for cancelling his visa but stated that “it should not be cancelled because of family and health reasons”. Primarily his mother’s stroke which he said “he struggled with and it had affected him deeply; and he did not want to deal with the affects or to see her like that”. In his submission to the Department of Immigration and Foreign Affairs he said that “his mother’s illness changed him, and that he became depressed and sad, and lost his focus”.

13. He said in his statement to the Department and during the hearing at the Tribunal that felt like a victim, due to what happened to his mother.

14. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course from the 30 April 2017 until the date of his visa cancellation on 7 March 2018. The applicant was enrolled in IELTS Preparation course (Upper Intermediate to Advanced) and Bachelor of Engineering Technology (Civil).

15. He told the Tribunal he was being honest about his situation and said it was very hard to explain the whole thing. He was studying engineering at 28 years at the request of his father who wanted him to become a qualified engineer so that he could work with him in the family business.  He did two and half years marketing studies at home before coming to Australia, and helped his father with his construction business. He is ready to go back (to study) and hungry to go back; he has suffered a lot.    

16. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

17. 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’. The applicant did not provide a response to the invitation to hearing. The Tribunal has read and considered all materials that have been provided and the evidence submitted to the Tribunal during the hearing for the purposes of making its decision.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or remain in Australia

18. The applicant told the Tribunal during the hearing on the 3 September 2019 that his purpose for travelling to Australia was to study. The applicant told the Tribunal that he was not currently enrolled in a Nursing course, but would like to undertake this course, since his family’s health issue he told the Tribunal he just wants to help people. The applicant’s enrolment was cancelled on 30 April 2017, and he has not been enrolled in a registered course since that date.  He did not provide compelling reasons, or need to remain in Australia. The applicant told the Tribunal of his mother’s illness and provided a medical certificate of her stroke dated 14 December 2017. He did not provide any supporting material in regard to his father’s accident, his financial circumstance or supporting material in relation to his own mental health which he told the Tribunal had prevented him from attending university, or seeking a deferral.  As there is no supporting evidence the Tribunal places little weight in favour of the applicant in this regard.

    Extent of compliance with Visa conditions    

19. The applicant did not comply with Visa conditions and had his enrolment cancelled on the 30 April 2017.  The Tribunal is satisfied that the applicant has not complied with his visa condition as he has not maintained his enrolment in a registered course of study. The Tribunal in considering this places no weight in the applicant’s favour.

    Degree of Hardship that may be causes (financial, psychological, emotional or other hardships)

20. The applicant has been in Australia since his visa grant 23 July 2014, in this time he has completed only one course of the three that have been commenced.  Even allowing for changes in direction which can sometimes occur, and is understandable if those changes are adhered to; as are the purpose and conditions of the visa. The applicant has now expressed his desire to complete a Nursing Degree and the Tribunal has now been asked to consider this further change of direction by the applicant. The Tribunal places no weight in favour of the applicant in this regard on the basis that the applicant has shown little commitment to maintaining his studies or his visa previously.

21. The applicant gave evidence that he was ashamed he had not completed a course, and was unsure of his parents’ reaction. The Tribunal in considering this evidence does not accept this as a form of hardship: the applicant’s parents may express disappointment, but the applicant has been in Australia since 2014 with very little academic progress to show for this time here.  As such there is the assumption that his parents will expect their son to return home to Lebanon and whilst they may be disappointed, it is difficult to equate this with hardship. The Tribunal places no weight in favour of the applicant this regard.         

22. The Tribunal notes that in the event that the applicant’s visa is cancelled, under s.48 of the Act he may have limited options available to him if applying for further visa in Australia. In addition he will be subject to Public Interest Criterion 4013 which means that he may not be granted a temporary visa for three years from the date of cancellation.

23. Nevertheless, the applicant has already obtained a Certificate of Cookery which has enabled him to obtain employment and valuable experience in Australia.  He told the Tribunal that he had studied and completed a course in cooking and was working for a time as a cook, specialising in Middle Eastern cuisine 20 hours per week in Australia, and that he really loved cooking.  It therefore appears that the applicant is already qualified to obtain employment and continue a career in cooking in his home country of Lebanon. The applicant is not currently working as he has no work rights.

24. While the Tribunal accepts that if the applicant’s visa is cancelled he will suffer some hardship by having to return to Lebanon, it does not accept the applicant’s evidence of the reason and his desire to enrol and complete a Nursing Degree. The Tribunal places little weight in this regard and as such has given little weight to the hardship the applicant will suffer in making its decision.

    The circumstances in which the grounds for cancellation arose

25. The applicant told the Tribunal that he struggled after his mother’s Stroke and that it affected him deeply. Although the applicant felt that he had been cheated as a result of his mother’s illness, and that he was a victim. He also agreed that he had remained un-enrolled for a period of 8 months.  He also agreed that there were grounds for cancellation as he had not maintained his enrolment and had not studied since 30 April 2017.

26. The applicants also made submission that his father had a car accident where he hit two people on a bike and from that time he could not support him financially in his studies.  He lost the contract as land developer and builder and could not work for 12 months after the accident.  The applicant told the Tribunal that this resulted in his father paying penalty rates on this contract, which caused the family financial duress. The applicant said he had documents to support this, but this was not included in his submission previously, nor has this been included subsequently. The Tribunal asked for medical records, and other record to be provided by the applicant, but as of time of writing these have not been provided. As such, while the Tribunal is prepared to accept that the applicant’s father was involved in a serious accident, which involved two other people being injured and his father also being injured and unable to work and that the applicant would have been concerned for his father’s wellbeing. It has not been provided evidence of this claim that it would have affected the applicant’s ability to study.  As such the Tribunal places no weight in favour of the applicant in this regard.

27. The Tribunal also heard from the applicant that at the Tribunal hearing that during the time after his father’s accident that his family’s finances were affected. The applicant told the Tribunal of the effect that his mother’s illness had on him, that he did not want to see her like that.  He visited his mother in Lebanon, but came back to Australia because he found it difficult to see her like that. He told the Tribunal he is close to his mother and his father was unable to pay his university fees. He told the Tribunal that he had not disclosed to anyone before.  Despite this claim by the applicant, the Tribunal cannot accept the voracity of this new evidence as it has not been substantiated by any other material provided to the Tribunal. The applicant told the Tribunal he was ashamed because he did not have any money and was not used to working or supporting himself. He is supported by his brother-in-law and sister and cousin financially, and they could not pay his university fees. The Tribunal has been provided no evidence of the applicant’s claim of financial difficulties. The Tribunal was told that the applicant did not seek guidance from his education provider, the Department or a migration agent.  The Tribunal accepts the difficulties experienced by the applicant but does not place any weight in favour of the applicant on the basis of the seriousness of the breach of visa conditions where the applicant remained unenrolled for 8 months and was aware of how this could affect his visa, yet did not ask for a deferral due to his difficulties.  

28. The applicant told the Tribunal he became depressed and did not go out, he did not attend classes, and did not maintain his enrolment.

29. The applicant went to the doctor and to a psychologist on approximately three occasions. The applicant has provided no reports to evidence this, although he said that the psychologist had given him strategies to help him cope, including going to the gym and bike riding.  He considered going home but was scared to face his mother and her illness.

30. If his visa is cancelled he told the Tribunal “he feels a victim here, because everything happened he should be studying now he should be finished. All his friends have finished.” He told the Tribunal that he felt that “It is all out of his hands”.

31. The Tribunal does not accept that this was the case; the applicant had a number of options open to him at the time which he did not pursue; one of those was notifying the University of his difficulties and request a deferral, which he did not do. He told the Tribunal that he considered going home but did not want to face the situation with his mother. The Tribunal accepts that his mother’s illness and father’s accident were beyond the applicant’s control, but does not accept that the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

    Past and present behaviour of the applicant

32. The applicant has been cooperative and courteous in his dealings with the Tribunal.  No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

    Persons in Australia whose visa would be cancelled under s.140

33. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no persons in Australia whose visa may be cancelled under s.140 of the Act.

34. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

    Any breach of International obligations Australia may have as a result of the applicant’s visa being cancelled.

35. The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

    Other relevant factors

36. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case.

37. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.   

    DECISION

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

    Donna Petrovich
    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.