Akhtar (Migration) - [2019] AATA 5913

Akhtar (Migration) [2019] AATA 5913 (23 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Choudhary Suleman Akhtar
CASE NUMBER:  1833984
HOME AFFAIRS REFERENCE(S):          BCC2018/2390940
MEMBER:Christine Kannis
DATE:23 August 2019
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 23 August 2019 at 7:05am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – genuine student – non-study period of nine months – several course enrolments cancelled – non-commencement of studies – unsatisfactory course progress – medical issues – death of friend – mental health issues – car accident – factors beyond applicant’s control – continuously attempted to re-enrol – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA
Migration Regulations 1994 (Cth), r 2.43

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 9 November 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 of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant is not and is not likely to be a genuine student. The issue in this case is whether the 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.
The applicant appeared before the Tribunal on 19 August 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent who attended the hearing by telephone.
The Tribunal advised the applicant that it had a copy of his Provider Registration and International Student Management System (PRISMS) records and correspondence from the Edith Cowan College to him that was provided to the Department. The Tribunal advised the applicant, following the procedure of s.359AA of the Act, that subject to his comment or response, this information would be the reason or part of the reason for the decision under review being affirmed. The Tribunal advised that this information was relevant because it comprised or added to evidence that he was not a genuine student. The Tribunal advised the applicant that at any time during the hearing he could seek an adjournment and consult with his representative before responding to any of the information or questions based on the information. He did not seek an adjournment at any time.
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
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…

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: Akhtar (Migration) [2019] AATA 5913
Case: [2019] AATA 5913
Decision Date: 23 August 2019

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr Akhtar, against the cancellation of his Subclass 573 Higher Education Sector visa. The Department of Immigration and Border Protection had issued a Notice of Intention to Consider Cancellation on the grounds that the applicant was not, and was unlikely to be, a genuine student. The applicant's study history, as recorded by PRISMS, indicated multiple course enrolments and cancellations, non-commencement of studies, and unsatisfactory course progress. He had also experienced a significant non-study period of nine months and was enrolled in a Certificate III course, which was below the Higher Education Sector level required for his visa.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(fa)(i) of the Migration Act 1958 (Cth) existed, specifically whether the applicant was a genuine student. If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances. The Tribunal noted that the definition of a "genuine student" focused on behaviour and engagement with studies, not merely literal compliance with visa conditions.

In its reasoning, the Tribunal acknowledged the applicant's extensive non-study period and his failure to successfully complete any course of study since his arrival in Australia. It also noted his enrolment in a vocational course below the required level. While these factors weighed in favour of cancellation, the Tribunal ultimately concluded that the visa should not be cancelled. It recognised that the cancellation of a visa is a significant matter and, after considering the circumstances as a whole, including factors beyond the applicant's control that may have contributed to his study difficulties, it found the matter to be finely balanced.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.

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 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. Relevant to this case, these include the ground set out in s.116(1)(fa). 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)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in s.116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]). For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision. There is nothing before the Tribunal to indicate that r.2.43(1C) or (1D) apply in this case. On 12 September 2014 the applicant was granted a Subclass 573 visa to study a course package leading to a Bachelor of Engineering (Civil) Honours at Edith Cowan University. PRISMS shows the applicant has been enrolled in several Bachelor courses and Diploma courses and that his enrolments have been cancelled for non-commencement of studies or due to unsatisfactory course progress. PRISMS also shows he has finished three Diploma courses however they were not successfully completed. On 23 October 2018 the Department of Immigration and Border Protection (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that he is not and is not likely to be a genuine student. The NOICC set out the PRISMS information and the following information:·He had not followed the study plan he proposed in his Subclass 573 application.·Contact with his education provider confirmed that he made several attempts to complete a course at their institute and he had not successfully completed the Diploma of Science (Engineering) or Diploma of Science (Health Studies). Therefore since his entry to Australia he has not successfully completed a course of study.·He sought a deferral for a Bachelor of Engineering (Civil) Honours which was approved from 29 February 2016 to 25 July 2016. He did not re-commence his principal course of study.·He is currently studying at the Vocational Education and Training level in a Certificate III Painting and Decorating and he has no valid enrolments in a Higher Education Sector course. Therefore he is not enrolled in a course of study at the level required for the Subclass 573 visa.·He has an extensive non-study period of nine months and 29 days (19 July 2017 and 18 May 2018).

Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. This matter was finely balanced however considering the circumstances as a whole the Tribunal concludes that the visa should not be cancelled.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.Christine KannisMemberATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994…(1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.(1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:(a)because of the conduct of the holder; or(b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or(c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or(d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.

Ratio Decidendi

Legal Principle Established

Having regard to the applicant’s study history, his poor academic progress and lack of enrolment over a substantial period, the Tribunal finds that the applicant is not a genuine student. The Tribunal finds that the ground for cancellation in s.116(1)(fa)(i) 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 purpose of the visa holder’s travel to and stay in Australia The applicant told the Tribunal his purpose in coming to Australia was to study at the Higher Education Sector level. He attempted study in the course package leading to a Bachelor of Engineering (Civil) Honours however he has not successfully completed a course of study. The Tribunal has found that there was a nine month gap in his study after which he commenced study at the Vocational Education and Training level. At the time the NOICC issued the applicant had been successfully studying a course at the Vocational Education and Training level for nearly six months. The applicant’s non-engagement in study for an extended period weighs in favour of visa cancellation.Whether the visa holder has a compelling need to travel to or remain in Australia The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia. He said he needs to obtain a skill so that he does not have to rely on his parents to financially support him. The Tribunal is not satisfied that the applicant has a compelling need to travel to or remain in Australia which would mean his visa should not be cancelled. The absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.The extent of compliance with the visa conditions The applicant was granted a Higher Education Sector Subclass 573 student visa in order to study in Australia. As such his intention must be to study, maintain enrolment, attendance and course progress in a Higher Education Sector CRICOS registered course. He was not enrolled in any CRICOS registered course for a period of nine months whilst he has remained in Australia on a visa which is for the purpose of study. He was not studying for a significant period of time. The applicant acknowledged that he did not contact the Department or make any effort to inform the Department that he was not enrolled and did not study during a significant part of his student visa period. The Tribunal notes that the non-compliance with enrolment in a registered course at the appropriate level occurred over a substantial period of time and places weight upon this. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions.The degree of hardship that may be caused (financial, psychological, emotional or other hardship)