Asghar (Migration) - [2019] AATA 5855

Asghar (Migration) [2019] AATA 5855 (23 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Irtaza Asghar
CASE NUMBER:  1915364
HOME AFFAIRS REFERENCE(S):          BCC2019/1081706
MEMBER:Christine Kannis
DATE:23 August 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 23 August 2019 at 7:12am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine student – course enrolments cancelled – unsatisfactory course progress – gap in study of 14 months – illness in family – study difficulties – inconsistent evidence – lack of evidence – decision under review affirmed

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 6 June 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 12 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review by his registered migration agent.
The Tribunal advised the applicant that it had a copy of his Provider Registration and International Student Management System (PRISMS) records. 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 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. 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…

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 Asghar (Migration)

Details

AGLC: Asghar (Migration) [2019] AATA 5855
Case: [2019] AATA 5855
Decision Date: 23 August 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Asghar, who sought review of the Minister's decision to cancel his Subclass 500 (Student) visa. The dispute centred on whether Mr Asghar was a "genuine student" as required by the Migration Act 1958 (Cth).

The Tribunal was required to determine if the ground for cancellation under s 116(1)(fa)(i) of the Act, which relates to a student visa holder not being a genuine student, was made out. 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 reasoned that Mr Asghar was not a genuine student based on his study history, which included multiple course cancellations and a significant gap in study. His enrolment in a Diploma of Science was cancelled shortly after commencement, followed by a packaged course in Commercial Cookery, which was also cancelled due to unsatisfactory progress. The Tribunal noted a 14-month period between his last day of study and the notice of proposed cancellation, during which he provided no evidence of commitment to study. While acknowledging family illness, the Tribunal found it did not excuse the prolonged lack of engagement. Applying the principles from *MIMA v Hou*, the Tribunal concluded that Mr Asghar's conduct did not align with that of a genuine student, and therefore the ground for cancellation was established.

On balance, and considering all circumstances, including the applicant's limited compliance with visa conditions and lack of compelling need to remain in Australia, the Tribunal affirmed the decision to cancel Mr Asghar'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

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. 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 10 April 2017 the applicant was granted a Student Subclass 500 visa and he arrived in Australia on 9 June 2017. PRISMS shows the applicant was originally enrolled in a Diploma of Science (Computing/IT) and a Bachelor of Computer Science as a packaged course. The course dates were 21 June 2017 to 1 June 2018 and 30 July 2018 to 10 July 2020 respectively. PRISMS indicates that on 6 November 2017 the applicant’s CoE in the Diploma of Science (Computing/IT) was cancelled and on 10 November 2017 his CoE in the Bachelor of Computer Science was cancelled. On 13 December 2017 the applicant obtained CoEs for a packaged course at Australian Technical College Western Australia (ATCWA). The courses were Certificates III and IV in Commercial Cookery, a Diploma of Hospitality and an Advanced Diploma of Leadership and Management. The Certificate III course commenced on 15 January 2018. PRISMS shows the applicant’s enrolment in the packaged course was cancelled on 10 December 2018 and that his enrolment in the Certificate III was cancelled due to unsatisfactory course progress.

Decision

Reasons for decision

The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. 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 Subclass 500 (Student) 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 attendance 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. He commenced study in a Diploma of Science (Computing/IT) course and after four months changed to a Cookery course. Two months after commencing this course he ceased study. Whilst the Tribunal accepts that the applicant may have been concerned about his father’s health in March 2018, his father was discharged from hospital in May 2018. The Tribunal noted that the applicant has been in Australia for more than two years and in that time he has not successfully completed any course. The Tribunal has found that the applicant’s last day of study was 8 March 2018 and that 14 months elapsed from that date until the issuing of the NOICC. There is no evidence before the Tribunal to indicate that the applicant was at any time committed to studying. 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 applicant said he is compelled to stay in Australia because he wants to continue to study his Cookery course. 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 extent of compliance with the visa conditions The applicant was granted a student visa in order to study in Australia. As such his intention must be to study, maintain enrolment, attendance and course progress, in a registered course. PRISMS indicates the applicant’s progress in the Certificate III course was poor and that his last day of study was 8 March 2018 which suggests he did not attend the college after that date.The degree of hardship that may be caused (financial, psychological, emotional or other hardship) Regarding the potential hardship which may result from cancellation of the visa, the applicant said his dreams would be damaged. He also said his country is in a bad way. The Tribunal acknowledges that the cancellation of the applicant’s visa will be disappointing to the applicant. However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control