ABEDALQADER (Migration) - [2019] AATA 5692

ABEDALQADER (Migration) [2019] AATA 5692 (29 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr HUSSEIN MOHAMMAD HUSSEIN ABEDALQADER
CASE NUMBER:  1707986
HOME AFFAIRS REFERENCE(S):          BCC2017/386876
MEMBER:Justin Owen
DATE:29 November 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 29 November 2019 at 4:51pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in higher education course – course cancelled – scholarship – change of course – applicant took actions to mitigate breach – diligently completed course – decision under review set aside

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

Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 11 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 of the Migration Act 1958 (the Act).
The applicant is a national of the Kingdom of Jordan born 27 May 1985. His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 19 February 2015 and was subject to condition 8516. On 3 April 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8516 of his visa, as he was no longer enrolled in a Bachelor or Master degree course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A. As he had not continued to be a person that would satisfy either subclauses 573.231 or 573.223(1A), the delegate considered that the applicant had not complied with condition 8516 of his visa. The applicant responded to the NOICC on 6 April 2017. On 11 April 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8516 of his visa.
The delegate cancelled the visa under s.116(1)(b) on the basis that the delegate was not satisfied that the applicant complied with a condition of his visa, namely condition 8516. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 28 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
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
The issue in…

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.

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Details

AGLC: ABEDALQADER (Migration) [2019] AATA 5692
Case: [2019] AATA 5692
Decision Date: 29 November 2019

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the visa of Mr ABEDALQADER, the holder of a Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa. The dispute arose because the applicant was no longer enrolled in a higher education course, and his course had been cancelled. The decision under review was made by the delegate of the Minister, and the application for review was heard by the Tribunal.

The legal issues before the Tribunal were whether the applicant had breached condition 8516 of the Migration Regulations 1994, which requires a visa holder to continue to satisfy the criteria for the grant of their visa, and if so, whether the Minister's discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant's enrolment status meant he no longer satisfied the primary criteria for his Subclass 573 visa, thereby constituting a breach of condition 8516.

The Tribunal found that the ground for cancellation under s 116(1)(b) of the Act did exist, as the applicant had not maintained enrolment in a principal course of study for the Subclass 573 visa for a period. However, the Tribunal then considered the exercise of discretion regarding cancellation. It had regard to the applicant's purpose of travel and stay in Australia, noting that he had diligently completed English courses, enrolled in a Master's degree, and successfully completed his studies. The Tribunal considered the applicant's efforts to secure suitable enrolment after his original course was discontinued as indicative of his genuine intention to study. The Tribunal also gave little negative weight to the period of non-compliance with condition 8516, characterising it as a situation of unfortunate circumstance and bureaucracy, and noted no other visa conditions had been breached.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The Tribunal set aside the delegate's decision and substituted a decision not to cancel the applicant's Subclass 573 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8516 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. 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 s116(1). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.Does the ground for cancellation exist? A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 is attached to the applicant’s visa. This condition 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. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant is an eligible higher degree student who satisfies cl.573.223(1A), or, if not, is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind 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: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 12/037. 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. As the applicant applied for the visa before 1 July 2014, the relevant instrument specifying eligible education providers for this visa is IMMI 14/007. In the present case, the applicant’s visa was cancelled on the basis the applicant did not continue to be a person who would satisfy either subclauses 573.231 or 573.223(1A). As such it appeared that the applicant no longer satisfied the primary criteria for the grant of the visa and did not comply with condition 8516. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 11 April 2017. The decision record states that information before the Department from the Provider Registration and International Student Management System (PRISMS) indicated that between 17 June 2016 until after the NOICC was issued on 3 April 2017, the applicant was no longer enrolled in a Bachelor’s degree or Master’s course and was not enrolled in a 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.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelledDECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa..Justin OwenSenior Member

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 the visa should be cancelled.Consideration of discretion 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 Tribunal has considered the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia. The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia. The Tribunal is satisfied that the applicant has been in Australia for education purposes. Since his arrival he has completed a range of English courses required as a prerequisite for his Master’s study. He completed his English studies in February 2017, enrolled at Torrens University in April 2017, commenced his formal studies of his Master of Professional Accounting in June 2017 and in September 2019 completed his final examinations and assessments for the successful awarding of his degree (T1, Folio. 46-47). The Tribunal disagrees with the delegate’s findings that his actions had indicated his intention was not to study at the Higher Education level. The applicant’s efforts over the past two and half years – plus his previous studies in meeting the English language prerequisites for his Master’s at UTS and TAFE – satisfy the Tribunal that the purpose of the applicant’s travel to and stay in Australia was for study. The applicant stated he has a desire to study a PhD in Accounting after his imminent graduation. The Tribunal considers the applicant’s efforts to secure a suitable enrolment in a Master’s degree after UTS discontinued their Master of Accounting and Finance degree followed by his subsequent successful studies indicate his purpose of travel for Australia was to study. Based upon the evidence before it the Tribunal finds the applicant was fulfilling the purpose of his travel to and stay in Australia as the holder of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa. On the evidence before concerning the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor against cancelling the visa. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with condition 8516 of his visa for a period of time by not being enrolled at a Higher Education Sector level for a period of time to be a situation of unfortunate circumstance and bureaucracy and gives it little negative weight. There is no evidence before the Tribunal that the applicant has been non-compliant with any other visa conditions. On the evidence before it the Tribunal weighs this factor against cancelling the visa.