Ali (Migration) - [2019] AATA 4435

Ali (Migration) [2019] AATA 4435 (25 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Syed Shahmir Ali
CASE NUMBER:  1713772
HOME AFFAIRS REFERENCE(S):           BCC2017/1372311
MEMBER:Mark Bishop
DATE:25 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 25 September 2019 at 2:46pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – non-commencement of studies – late payment of fees – ill relative – financial support – no compelling need to stay – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), cl 573.231, Condition 8516

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 27 June 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 delegate cancelled the visa under s.116(1)(b) on the basis that the applicant was no longer enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas. 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 25 September 2019 to give evidence and present arguments. Tribunal hearing was conducted with the assistance of an interpreter in the Pakistani and English languages.
The applicant provided a copy of the decision record to the Tribunal.
The applicant was represented in relation to the review by his registered migration agent.
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
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 s.116(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?
s.116(1)(b) - non-compliance with conditions
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 attached to the applicant’s visa. This condition requires a visa holder continue to satisfy the primary or secondary criteria for the grant of a visa.
Condition 8516 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…

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: Ali (Migration) [2019] AATA 4435
Case: [2019] AATA 4435
Decision Date: 25 September 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa was cancelled. The dispute arose because the applicant was not enrolled in a registered course, failed to commence studies, and had a history of late fee payments. The applicant sought to have the cancellation decision reviewed and affirmed by the Tribunal.

The Tribunal was required to determine whether the grounds for visa cancellation under section 116(1)(b) of the Migration Act 1958 were met, specifically concerning the applicant's non-compliance with visa conditions. This involved assessing whether the applicant continued to satisfy the criteria for the grant of their visa, which included maintaining enrolment in a registered course. The Tribunal also had to consider whether, having found a ground for cancellation, it should exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal reasoned that the applicant had breached condition 8516 of their visa, which mandates that a visa holder must continue to satisfy the primary or secondary criteria for the grant of their visa. This criterion, in the context of a Subclass 573 visa, requires ongoing enrolment in a registered course. The applicant's late payment of fees led to the cancellation of their enrolment, and while they later applied for a different course, they were not enrolled in a qualifying course for a significant period. Despite the applicant's explanations, including his father's illness and financial support, the Tribunal found that the ground for cancellation was established. In exercising its discretion, the Tribunal gave some weight to the applicant's stated purpose of study but found the extent of non-compliance with visa conditions to be significant.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector visa, concluding that the cancellation was warranted after considering all the circumstances.

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 affirmed. 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. Relevantly, to this case, these include the ground set out in s.116(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?s.116(1)(b) - non-compliance with conditions 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 attached to the applicant’s visa. This condition requires a visa holder continue to satisfy the primary or secondary criteria for the grant of a visa. Condition 8516 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 met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student. 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. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 12/037. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type 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. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 12/037. The delegate stated the applicant was notified of the intention to consider cancellation (NOICC) on 31 May 2017 and the notice invited the applicant to respond in writing. The applicant did respond in writing on 15 June 2017. The applicant did not agree there was non-compliance. The applicant provided reasons why the visa should not be cancelled. The applicant outlined a series of reasons as follows:·He paid his fees late to GCA and as a consequence GCA cancelled his enrolment. He paid his fees late because of the illness of his father. Thereafter he applied for admission to Polytech on 26 June 2017;·He wished to study a Bachelor of Accounting because it was an exciting career option;·He chose to study overseas because there is a trend in Pakistan to hire people with overseas qualifications;·He chose to study at Polytech because it is a great institute;·He outlined reasons for studying in Australia (great weather, natural beauty to see);·He believes a Bachelor of Accounting will propel his degree;·He lives with friends in Australia;·His father provides all necessary financial support

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.Mark BishopMember

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 power to cancel the visa should be exercisedConsideration 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 and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia The applicant advised his only reason to remain in Australia was to complete his degree. He had previously been enrolled in multiple Bachelor degrees. He enrolled in the VET sector following advice from his migration agent. He advised the Tribunal the next intake for the Bachelor program started in November 2019. There is no evidence before the Tribunal to suggest that the applicant’s original intention for travel to and stay in Australia was not for the purpose stated in his application, namely to study. In evidence the applicant advised the Tribunal he came to Australia for the purpose of study. In evidence he advised the only reason he came to Australia was to study. The Tribunal gives this consideration a little weight in the visa holder’s favour.The extent of compliance with visa conditions The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) for the purpose of study. The applicant has not held enrolment in a course of study specified for his visa at the Student Higher Education Sector (subclass573) level from 10 November 2014 to 4 February 2016 and from 4 May 2016 to 25 June 2017 where he enrolled in a Bachelor of Business (Accounting) on 11 July 2017. The Tribunal gives this consideration little weight in the visa holder’s favour. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study. As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.Degree of hardship that may be caused (financial, psychological, emotional or other hardship) The Tribunal asked the applicant to address the degree of hardship he might face if his student visa was cancelled. The applicant advised that after his student visa cancellation he was granted a Bridging visa E and could not travel home to Pakistan. His father was ill and he could not return home. He did not wish to leave his studies. He felt stressed because of the decision to cancel his visa. If he returns to Pakistan without completing his studies his period of time in Australia would be without point. He studied a Diploma in Leadership and Management during 2018/2019. He completed this course.