FAHDA (Migration) [2019] AATA 5559 (29 November 2019)

Last Updated: 24 December 2019

FAHDA (Migration) [2019] AATA 5559 (29 November 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr AHMAD FAHDA

CASE NUMBER: 1709372

HOME AFFAIRS REFERENCE(S): BCC2017/792532

MEMBER: Gregory Sarginson

DATE: 29 November 2019

PLACE OF DECISION: Sydney

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

Statement made on 29 November 2019 at 3:16pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – has not completed any course – death of relative – mental health claim – unsatisfactory explanation for non-enrolment – lack of evidence provided – serious breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
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 19 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 since 10 August 2016, and the discretionary grounds for cancelling the visa outweighed the grounds for not cancelling the visa. 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 6 June 2019 to give evidence and present arguments.
4. The applicant was represented in relation to the review by his registered migration agent. The registered migration agent attended the hearing and made oral submissions after the applicant had given evidence.
5. The Tribunal had access to the Department of Home Affairs file. Prior to the hearing the Tribunal had obtained a Provider Registration and International Student Management System (‘PRISMS’) record from the Department of Education; and a movement record. PRISMS records set out courses of enrolment of an international student. Movement records detail travel to and from Australia.
6. The applicant provided documents to the Tribunal in support of the review application as follows:
   1. Copy of the delegate’s decision dated 19 April 2017;
   2. Extract from passport;
   100. Written submission prepared by applicant’s registered migration agent dated 21 May 2019;
   4. Medical reports of Mr Girgis (clinical psychologist) dated 28 October 2014 and 31 October 2014;
   5. An Overseas Student Confirmation of Enrolment (‘CoE’) in respect of the Diploma of Design (Visual Communications) course at Insearch Limited t/as UTS: Insearch with a course start date of 11 February 2014 and course end date of 19 December 2014;
   6. Death certificate of applicant’s grandfather in Lebanon, with the date of death identified as 14 September 2015;
   7. Offer of enrolment from TAFE NSW for an Advanced Diploma of Interior Design course commencing 30 January 2017 and ending on 30 December 2019;
   8. Academic record from UTS Insearch for the Diploma of Design (Visual Communications) course in 2014. The academic record stated that the applicant had undertaken 6 subjects. He had obtained credit result in one subject; passed 2 subjects; and failed 3 subjects.
7. The file of the Department of Home Affairs contained a notice of intention to consider cancellation of visa (‘NOICC’) dated 3 April 2017. The applicant had responded to the NOICC in an email dated 6 April 2017. The applicant’s response to the NOICC is detailed in the decision of the delegate.
8. 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

9. 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.
10. The applicant was born in 1994 and is 25 years old. His home country is Lebanon. The applicant first arrived in Australia in November 2013 on a student visa.
11. The applicant gave evidence about his purpose of travelling to Australia and stay in Australia. The applicant stated that he had enrolled in a Bachelor of Design in Architecture degree at University of Technology Sydney (‘UTS’), but before he could commence such a course he needed to complete a Diploma of Design (Visual Communications) course at UTS.
12. The applicant stated he was “sponsored” by his aunt, who lived in Sydney with her family. His aunt had lived in Australia since 2002. The applicant lived with his aunt and her family when he first arrived in Australia.
13. The applicant studied at UTS in the Diploma of Design (Visual Communications) course in 2014. The applicant stated that he was “fine” in the first semester, but then failed subjects. The applicant stated that there were problems between himself and his aunt and her husband, who would get angry with him and force him to leave for the night on occasions. The husband of the applicant’s aunt blamed the applicant for the domestic conflict. The applicant had also been working part time with his aunt’s husband at a car workshop.
14. The applicant stated that he became upset and depressed because of the domestic conflict in 2014. He informed his mother in Lebanon, but she encouraged him to stay living with his aunt.
15. The applicant stated that he “started to fail subjects” and became sick. He saw a General Practitioner who referred him to Mr Girgis, psychologist. He was treated by Mr Girgis on 4 occasions.
16. The applicant moved out of his aunt’s house in September 2014 and moved in with a friend in Bankstown. The applicant’s aunt cut off financial support. The applicant stopped attending classes at UTS.
17. The applicant spoke to the student advisor at UTS on a number of occasions about the problems he was having.
18. The applicant also spoke to his father about the problems he was having, and how those problems affected his study. The applicant’s father recommended that he transfer to a Diploma of Engineering course, which he did. The applicant also had friends who were studying Engineering at UTS who also encouraged him to change courses.
19. The applicant enrolled in a Diploma of Engineering course which commenced in December 2014, but he applied for and was granted an extension to commence the course due to his personal circumstances.
20. The applicant attended classes at UTS in the period until September 2015 and “did some subjects” but failed the subjects he attempted.
21. The applicant then obtained advice from a migration agent, who recommended a less demanding course. He enrolled and completed an IELTS General English course in 2015, and enrolled in a Diploma of Leadership and Management course commencing February 2016. The applicant stated that he enrolled in the Diploma of Leadership and Management course because it was a short course and he had been given advice from a migration agent that he should enrol in the course. The applicant stated he had no real interest in the course, and he wanted to study Design.
22. However, in September 2015 the applicant’s grandfather died in Lebanon. The applicant was close to his grandfather, having “grown up in his house”. The applicant’s grandfather had been suffering from diabetes, but in September 2015 suffered a heart attack, causing his death. The applicant’s grandfather had been in hospital for approximately 10 days before his death.
23. The applicant had become upset and depressed after the death of his grandfather, and was unable to concentrate on his studies. The applicant told his mother that he was failing in his studies, and she was supportive, but his father “didn’t understand”. The applicant “gave up” studying and attending classes.
24. The applicant ceased to be enrolled in the Diploma of Leadership and Management course in August 2016. The applicant stated that he had attended classes on occasions but had not completed any subjects.
25. The applicant then applied to be enrolled in an Advanced Diploma of Interior Design at TAFE NSW. In October 2016, he received notification that he had been accepted into the course commencing in late January 2017. However, the applicant was distracted by “family stuff” including that his father wanted him to return to study Engineering. The offer of enrolment had expired in December 2016, but the applicant stated his migration agent had contacted TAFE, and the education provider was going to extend the offer until the July 2017 semester intake.
26. The applicant then received the NOICC from the Department and responded to the NOICC. The applicant’s visa was then cancelled.
27. The applicant stated that he had never enrolled in the Advanced Diploma of Interior Design at TAFE, despite being offered enrolment and his oral evidence that the offer had been extended. When the Tribunal asked why this was the case, the applicant stated that he was “scared” to tell his parents in Lebanon that his student visa had been cancelled.
28. The applicant then enrolled in a Diploma of Hospitality Management course commencing in July 2017. The applicant stated he had enrolled in this course because his migration agent had advised him to do so, and it would assist his “motivation to study”. The applicant briefly attended classes but completed no subjects because he had no interest in the course.
29. The applicant stated that if he is successful in the review application, it is his intention to enrol in an Advanced Diploma of Interior Design course or a Diploma of Interior Design course.
30. The applicant was asked about his employment history and accommodation situation. He stated that he had worked various part time jobs for a number of years in hospitality and construction, but had never had “stable” employment. The applicant shares accommodation with friends and does not pay rent. His family in Lebanon provides financial support.
31. The applicant stated that he wanted “one more chance to fix everything up”. He stated that his initial studies had progressed well, but he had been side tracked by depression in 2014 and the effect of the death of his grandfather in 2015.
32. The applicant was asked whether there would be any adverse consequences for him if he returned to Lebanon, such as compulsory military service. The applicant gave no evidence raising adverse consequences, other than the disappointment that the applicant’s parents would experience if the applicant returned to Lebanon without having achieved any substantial academic qualifications in Australia.

Did the applicant comply with Condition 8202?

33. 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).
34. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
35. The delegate’s decision refers to the PRISMS record that the delegate had obtained as of the date of the delegate’s decision dated 19 April 2017. The PRISMS record contained information that the applicant had not been enrolled in a registered course of study since 10 August 2016.
36. The applicant confirmed in oral evidence to the Tribunal that the information contained in the PRISMS record referred to in the delegate’s decision was correct, and he had not been enrolled in a registered course of study in the period between 10 August 2016 and the date of the delegate’s decision.
37. At the hearing, the applicant gave evidence of the registered courses of study he had been enrolled in and the circumstances in which he had ceased to be enrolled. The evidence of the applicant was consistent with the information contained in the PRISMS record. The Tribunal did not regard there as being any adverse information in the PRISMS record.
38. The applicant gave evidence at the hearing that he had not travelled from Australia after arriving in 2013. His evidence was consistent with the movement records. The Tribunal did not regard there as being any adverse information in the movement record.
39. The Tribunal did not regard there being any adverse information in the Department’s file that was not set out in the delegate’s decision.
40. On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study. Accordingly, the applicant has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

41. 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’.
42. The Tribunal gives consideration to the discretionary grounds as follows:

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

43. The Tribunal accepts that the applicant’s initial purpose of travel and stay in Australia was to study. The Tribunal also gives some weight to the fact that the applicant’s academic record at UTS in the Diploma of Design (Visual Communications) course demonstrates that he completed his first 3 subjects (obtaining 2 passes and 1 credit) in 2014.
44. The Tribunal gives some weight to the applicant’s evidence that he had psychological problems in 2014 arising from family conflict with his aunt and her husband. The report of Mr Girgis dated 31 October 2014 states that the applicant satisfied “all of the DSM-IV (Diagnostic and Statistical Manual of Mental Disorder) for a diagnosis of Adjustment Disorder with Anxiety”, and had deferred his studies “this semester” on advice from the university as his “psychological issues were interfering with his academic ability”.
45. The Tribunal accepts the applicant’s oral evidence that he was treated by Mr Girgis on 4 occasions, although there is no evidence from Mr Girgis regarding the treatment other than the report of 31 October 2014.
46. The Tribunal gives some weight to the applicant’s evidence regarding his domestic difficulties arising from conflict with his aunt and her husband in 2014, which caused him to move out of accommodation and the cutting off of financial support to the applicant by his aunt.
47. The Tribunal accepts that the applicant’s grandfather passed away in September 2015 and that the applicant had a close relationship with his grandfather. The Tribunal accepts that the death of the applicant’s grandfather caused the applicant grief, and had some impact upon his ability to study.
48. However, the weight of such factors needs to be considered in the context of the purpose of the visa being to study in a registered course of study on a full time basis and that a condition of the visa is to remain enrolled in a registered course of study. The applicant has not completed any registered courses of study since arriving in Australia other than 2 English courses of short duration. The applicant has enrolled in a number of registered courses since arriving in Australia, and his overall record of academic achievement is poor. The evidence of the applicant was that the major events that affected his psychological abilities to concentrate on his studies occurred in 2014 and 2015. The evidence of the applicant was that despite such psychological difficulties he was able to work, albeit in employment that was not consistent.
49. The applicant is not currently enrolled in a registered course of study, nor do circumstances arise where he has a compelling need to travel or remain in Australia, such as being currently enrolled in a registered course of study and only having a short period left to complete such a course.
50. The Tribunal gives limited weight to this discretionary factor in favour of the applicant

Extent of Compliance With Visa Conditions

51. It was a condition of the applicant’s student visa that be enrolled at all times in a registered course of study. The applicant had ceased to be enrolled in a registered course of study on 10 August 2016, and had relevantly remained unenrolled until the date of the delegate’s decision on 19 April 2017, a period of over 8 months prior to the date of cancellation.
52. There is no evidence of any breach of visa conditions subsequent to 19 April 2017.
53. Considering the lengthy period of time the applicant was not enrolled in a registered course of study prior to the date of cancellation, the Tribunal gives limited weight to this discretionary factor in favour of the applicant.

Degree of Hardship That May Be Caused (Financial, Psychological, Emotional or Other Hardship).

54. The evidence of the applicant on the degree of hardship that may be caused by the cancellation focussed upon the disappointment that would be caused to his family if he returned to Lebanon without having achieved any academic qualifications in Australia.
55. The Tribunal accepts that if the visa is cancelled the applicant will be disappointed and upset; and his close family members will be disappointed and upset. The Tribunal also accepts that studying in Australia involves a significant financial investment including payment of course fees and living expenses, and if the applicant does not achieve completion of a registered course of study of substance, he and his family will be disappointed and upset due to the expenses incurred in pursuing studies in Australia.
56. The Tribunal has also taken into account that the applicant has a past history of psychological difficulties, and treatment by Mr Girgis in 2014. However, there was no evidence to establish that the applicant is currently suffering from any mental illness or psychological condition, and that the effect of cancellation upon the applicant’s psychological condition will extend beyond causing disappointment and upset.
57. The Tribunal gives some weight in favour of the applicant on this discretionary factor.
58. However, the weight given in favour to the applicant in regards to the degree of hardship that may be caused by the breach needs to be considered with the other discretionary factors.
59. The Tribunal is mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition such as non-enrolment. While the Tribunal accepts that a degree of hardship will be caused it does not outweigh the seriousness of the breach in all the circumstances of the matter, and the Tribunal gives limited weight to this discretionary factor in its considerations.

Circumstances In Which The 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.

60. The ground of cancellation arose because the applicant was not enrolled in a registered course of study from 10 August 2016 to the date of cancellation on 19 April 2017.
61. The failure to remain enrolled in a registered course of study after 10 August 2016 was not, on the evidence given by the applicant, as a result of family violence. Although the applicant gave evidence of family conflict with his aunt and her husband in 2014, the evidence did not establish family violence, and in any event the applicant moved out of his aunt’s house in September 2014, but ceased to be enrolled in a registered course of study on 10 August 2016.
62. The Tribunal has set out previously the applicant’s evidence as to why he ceased to be enrolled in a registered course of study.
63. The Tribunal accepts that the applicant had some psychological difficulties arising from his family conflict involving his aunt and her husband in 2015; and his grandfather’s death in September 2015. The Tribunal also notes the evidence of the applicant that he was distracted by “family stuff” in 2016.
64. However, the evidence does not establish that such circumstances prevented or substantially impaired the applicant from studying, or ensuring that he was enrolled in a registered course of study. In this regard, the applicant was psychologically capable of applying for enrolment in the Advanced Diploma of Interior Design course at TAFE to commence in October 2016 and speaking to a migration agent about enrolling in such a course. The applicant’s evidence about being “distracted” does not sufficiently explain or provide a satisfactory basis for his failure to remain enrolled in a registered course of study for a period of approximately 8 months.
65. The breach of the condition of the visa was a serious breach ongoing for a period of approximately 8 months prior to cancellation, and the Tribunal gives little weight in favour of the applicant on this discretionary factor. The seriousness of the breach of the visa condition carries significant weight towards exercising the discretion to cancelling the visa rather than exercising the discretion in favour of not cancelling the visa.

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

66. If the visa remains cancelled, the applicant would continue to hold a bridging visa for a short period of time to allow him to finalise his affairs before returning to Lebanon, subject to any appeal of the Tribunal decision. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and deportation. Cancellation may also restrict the applicant’s future ability to make a successful visa application.
67. However, such consequences arise from the intended operation of the provisions. The Tribunal gives this discretionary factor little weight in favour of exercising the discretion not to cancel 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

68. There is no evidence to indicate that Australia’s international obligations would be breached as a result of cancellation, and the Tribunal gives this discretionary factor no weight in favour of exercising the discretion not to cancel the visa.

If It’s A Permanent Visa, Whether The Former Visa Holder Has Strong Family, Business Or Other Ties In Australia

69. The visa under consideration is a temporary visa. Accordingly, this discretionary factor is inapplicable.

Any Other Relevant Matters

70. There are no other relevant maters.
71. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Gregory Sarginson
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.