Abbasi (Migration) - [2024] AATA 2479

Abbasi (Migration) [2024] AATA 2479 (24 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Saif Ullah Naeem Abbasi
CASE NUMBER:  2300730
HOME AFFAIRS REFERENCE(S):          BCC2022/3903245
MEMBER:Christine Kannis
DATE:24 June 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 24 June 2024 at 12:06pm (WA time)
CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa –failed to attend hearing – applicant was not enrolled in a full-time registered course – breached condition 8202 – was not undertaking the study for which his visa was granted – there was non-compliance by the applicant in the way described in the notice – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 359
Migration Regulations 1994, r 1.03, Schedule 2
Education Services for Overseas Students Act 2000
CASES
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 11 January 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
On 24 April 2024, the Tribunal sent the applicant an Invitation to attend a hearing on 4 June 2024 at 11.00 am (Vic time). The Invitation advised the applicant that if he was not able to attend the hearing he should advise the Tribunal as soon as possible. The invitation further advised:
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
On 3 May 2024, the Tribunal sent the applicant an email advising as follows:
I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.
On 24 April 2024 the Administrative Appeals Tribunal (AAT) sent you an invitation to attend a hearing on 24 June 2024. This invitation included a Hearing Response form for your completion, to be returned to us within 7 days. To date, we have not received the Hearing Response form or any accompanying submissions.
The Tribunal requires that the Hearing Response form is submitted to us immediately
On 6 May 2024, the Tribunal received a signed Hearing Response in which the applicant indicated that he would be participating in the hearing and that he would not be requesting the Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abbasi (Migration)

Details

AGLC: Abbasi (Migration) [2024] AATA 2479
Case: [2024] AATA 2479
Decision Date: 24 June 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, subclass 500, held by Mr. Abbasi. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation (NOICC) due to Mr. Abbasi's failure to maintain enrolment in a registered course, thereby breaching condition 8202 of his visa. Mr. Abbasi had ceased to be enrolled in a registered course from January 2021.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether the Tribunal should exercise its discretion to cancel the visa. The Tribunal was required to assess Mr. Abbasi's compliance with visa condition 8202, which mandates enrolment in a full-time registered course and maintenance of enrolment in a course that leads to a qualification at the same or higher level than the original course.

The Tribunal found that Mr. Abbasi had indeed failed to comply with condition 8202(2)(a) as he was not enrolled in a full-time registered course. While acknowledging the applicant's submissions regarding personal difficulties, including the impact of the COVID-19 pandemic, homesickness, and a diagnosed anxiety disorder, the Tribunal weighed these circumstances against the clear breach of visa conditions. The Tribunal noted that while the ground for cancellation did not mandate cancellation, it was required to consider whether to exercise its discretion.

Ultimately, the Tribunal affirmed the decision to cancel Mr. Abbasi's visa. Despite the mitigating factors presented by the applicant, the Tribunal concluded that, on balance and considering all circumstances, the cancellation of the visa was warranted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(1) The holder must be enrolled in a full time course of study or training if the holder is:(a)a Defence student; or(b) a Foreign Affairs student; or(c) a secondary exchange student.(2) A holder not covered by subclause (1):(a) must be enrolled in a full time registered course; and(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:(a) is enrolled in a course at the Australian Qualifications Framework level 10; and(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. 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 the discretion to cancel the visa 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’, as set out below. On 2 November 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 19 January 2021 and had therefore failed to comply with condition 8202(2)(a) of his visa. Response to NOICC On 8 November 2022, the applicant responded to the NOICC and provided the following information in a submission from his migration agent: In June 2015, the applicant arrived in Australia on a Student visa to study ELICOS leading to a Bachelor of Accounting at Holmes Institute's Sydney campus. In March 2016, he finished ELICOS and enrolled in a Bachelor of Accounting. He partially completed a Bachelor of Accounting. Due to the COVID pandemic at the end of 2018, he was homesick because he couldn't see his family in Pakistan, which impacted his studies, and he could not graduate. Everest Institute of Education accepted the applicant into a Certificate III in Light Vehicle Mechanical Technology in 2020. Due to the COVID pandemic, all classes were held online and the college did not offer any practical classes, which are required for this subject. The applicant couldn't catch up on theory classes and there were no practical classes and he assumed he was still enrolled. However, the institute cancelled his CoE in January 2021. The applicant was disappointed he couldn't finish his desired course and gain practical experience and began to feel ill and homesick and decided to travel to Pakistan for treatment and to see his family. He arrived in Pakistan on 28 October 2022 and after consulting with a doctor, he was diagnosed with generalised anxiety disorder and ordered to bed rest for a month. The applicant received the NOICC on 2 November 2022. He has obtained a CoE for a Certificate III in Light Vehicle Mechanical Technology leading to Diploma of Automotive Management from Glen Institute starting on 7 November 2022. He is a genuine student impacted by the COVID pandemic. Due to the situation worldwide he was mentally and emotionally stressed and could not continue his studies. He has a genuine intention to obtain an Australian qualification and has already enrolled in the Glen Institute. He needs to get his qualification because his career and future depends on it. He is confident once he completes this course he will have all the necessary qualifications and knowledge to return to Pakistan and run his own automotive business.