ARFAN (Migration) - [2020] AATA 195

ARFAN (Migration) [2020] AATA 195 (4 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr ZAHID ARFAN
CASE NUMBER:  1822932
HOME AFFAIRS REFERENCE(S):           BCC2018/1316915
MEMBER:Brian Camilleri
DATE:4 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel ZAHID ARFAN’s Subclass 573 Higher Education Sector visa.
Statement made on 04 February 2020 at 3:55pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – continue satisfaction of primary criteria – enrolment in the higher education sector – consideration of discretion – responsibility of visa holder – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, 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 1 August 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 under s.116 (b) on the basis that the visa holder did not comply with the primary criterion attached to his TU-573 Higher Education Sector 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.
The applicant appeared before the Tribunal on 22 January 2020 to give evidence and present arguments. The Tribunal hearing was conducted in the English language without the assistance of an interpreter as the applicant spoke fluent English.
The applicant was not represented in relation to the review by any 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 (b). 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)? Information considered
The applicant's TU-573 Higher Education Sector visa was granted to him on the basis of his declaration that his intention was to study a higher education level course at an education provider that is eligible under the streamlined student visa processing arrangements. The subclass 573 visa was granted on the basis that there a lower immigration risk.
Section116 (1) (b) provides that the Minister may cancel a visa if satisfied that the holder does not comply with a condition of their visa. In this instance condition 8516 was attached to the applicant’s visa.
Condition 8516 requires that…

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 ARFAN (Migration)

Details

AGLC: ARFAN (Migration) [2020] AATA 195
Case: [2020] AATA 195
Decision Date: 4 February 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of ARFAN, a holder of a Student (Temporary) (Class TU) visa, subclass 500 (Student). The dispute concerned the grounds for cancellation of the applicant's visa, specifically whether he continued to satisfy the primary criteria for his visa, which required enrolment in a higher education sector course.

The legal issue before the Tribunal was whether the applicant's enrolment in a Diploma of Accounting course, rather than a higher education level course as initially intended, constituted a failure to continue to satisfy the primary criteria for his student visa, thereby providing grounds for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth). The Tribunal was required to assess whether the applicant had complied with visa condition 8516 and the relevant provisions of the Migration Regulations 1994 concerning enrolment in a course at the requisite level.

The Tribunal reasoned that by enrolling in a Vocational Education and Training (VET) sector level course instead of a higher education level course, the applicant had demonstrated an intention not to pursue the studies for which his visa was granted. The Tribunal found that the applicant had not complied with condition 8516 as he was not enrolled in a bachelor's or master's degree course, nor a course specified under the relevant regulations. This failure to maintain enrolment in a course meeting the primary criteria for his visa subclass meant he no longer satisfied those criteria. The Tribunal concluded that the applicant had significantly altered his educational pathway without notification, indicating a lack of intention to study at the higher degree level, and was therefore no longer an eligible higher degree student.

The Tribunal affirmed the decision to cancel the applicant's visa.

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

Based on the information the Tribunal is satisfied that grounds exist for cancellation of the applicant's visa under paragraph(s) s116 (1) (b) of the Act.DECISION WHETHER TO CANCEL By not obtaining enrolment in a higher education level course and by enrolling in courses to study at the Vocational Education and Training (VET) Sector Level, the applicant has demonstrated an intention not to study a Higher Education level course in Australia, as required by his current student visa. The Tribunal notes that in his evidence before it (and also in response to the Department’s Notice of Intention to Consider Cancellation (NOICC)), the applicant had stated that his intention was still to study and complete a degree in Business after completing the course in Diploma of Accounting. The Tribunal notes his various enrolments in the Diploma of Accounting course. However, he has not provided evidence to indicate his interest in pursuing further studies in Business. The Tribunal considers that the applicant has not complied with condition 8516, as he has not been enrolled in a bachelor's or master's degree course, nor 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. Therefore the applicant has not continued to be a person who meets the provisions of subclauses 573.231 or 573.223(1A). The fact that he does not hold a valid certificate of enrolment in a course at the requisite level indicates that he continues fail to comply with the condition 8516 as he does not to meet sub clauses 573.231 or 573.223(1A). The applicant has significantly changed his educational pathways without notification to the department in relation to his visa which demonstrates that he does not have an intention to study at the higher degree level. The Tribunal is satisfied that the applicant is no longer an eligible higher degree student as defined by 573.111 of the Migration Regulations 1994 and no longer satisfies the primary criteria of subclass use 573:723(1A) of Schedule 2 of the RegulationsAssessment of relevant factors Taking into account the material listed under 'Information considered' above the Tribunal has also made the following assessment in regard to several relevant factors. During the application process for the student visa, the applicant stated that the intended purpose of travel to was to stay and study in Australia. He claims he came to Australia on a student visa to study Bachelor of Business (Accounting) at Australian Institute of Business and Management Pty in 2016. He was granted a student visa on the basis that he be enrolled in a full-time registered course(s) of study. He was/is required to have current or future enrolment in a course that meets the requirements for which the subclass 573 student visa was granted. He does not have this at the time of hearing before the Tribunal and has not held such an enrolment since 14/09/2016 as outlined above. Although the applicant was unable to complete the course requirements for which the subclass 573 student visa was granted, he was still required to have current or future enrolment in a course that meets 573.231 or 573.223(1A).If the applicant was unable to study at the level for which he was approved, he was required to change visa subclasses to reflect the level of study he was completing.

Ratio Decidendi

Legal Principle Established

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