Ashgar (Migration) - [2022] AATA 1595

Ashgar (Migration) [2022] AATA 1595 (17 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Usama Ashgar
REPRESENTATIVE:  Mr Ashutosh Sharma (MARN: 1682588)
CASE NUMBER:  2004244
HOME AFFAIRS REFERENCE(S):          BCC2019/3501910
MEMBER:Joseph Lindsay
DATE:17 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Statement made on 17 February 2022 at 11:12am
CATCHWORDS

MIGRATION – cancellation – Student (Class TU) visa – Subclass 500 (Student) – genuine student – low attendance, subject failures, uncompleted courses and cancellations of enrolments – enrolments in lower-level courses in different subject areas – discretion to cancel visa – age, immaturity and personal and family circumstances – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(fa)(i), (1A), (3)
Migration Regulations 1994 (Cth), r 2.43(1C), (1D)
CASE
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 27 February 2020 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 (Cth) (the Act).
The applicant appeared before the Tribunal on 4 October 2021 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. 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
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)(fa)(i) of the Act. 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 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 section 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…

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 Ashgar (Migration)

Details

AGLC: Ashgar (Migration) [2022] AATA 1595
Case: [2022] AATA 1595
Decision Date: 17 February 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 500 (Student) visa of an applicant, Mr. Ashgar. The dispute arose from concerns that the applicant was not a "genuine student," as evidenced by his low attendance rates, subject failures, cancelled enrolments, and subsequent enrolment in lower-level courses across different subject areas.

The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) were made out, specifically whether the applicant was, or was likely to be, 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, taking into account all relevant circumstances.

The Tribunal found that the applicant's admissions regarding his academic performance, including a 48.30% attendance rate and failure in all subjects in his initial course, followed by a 8% attendance rate and failure to achieve competency in a unit in his subsequent courses, established that he was not a genuine student. However, in exercising its discretion, the Tribunal gave significant weight to the applicant's personal circumstances. These included his youth and inexperience upon arrival in Australia, the stress caused by his sister's marital problems and his uncle's death prior to his arrival, and his immaturity at the time. The Tribunal accepted that these factors contributed to his difficulties in studying and his poor decision-making.

Balancing these factors, the Tribunal concluded that the visa should not be cancelled, offering the applicant a final opportunity to demonstrate he is a genuine student. Accordingly, the Tribunal set aside the decision to cancel the visa and substituted a decision not to cancel the applicant's Subclass 500 (Student) 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 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)(fa)(i) of the Act. 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 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 section 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 decision-maker may have regard in determining whether the ground for cancellation under s 116(1)(fa) exists: s 116(1A), reg 2.43(1C) and (1D) of the Migration Regulations 1994 (Cth) (the Regulations). The prescribed matters are set out in the attachment to this decision. The applicant provided to the Tribunal a copy of the delegate’s decision record dated 27 February 2020. The Tribunal has considered the delegate’s decision record. In the hearing, the Tribunal spoke with the applicant about the decision record. The applicant confirmed that all of the information in the decision record was true and correct. The applicant made admissions that: -he commenced the Diploma of Science on 21 June 2018; -on 13 November 2018, his enrolment in this course was cancelled for reason of unsatisfactory course progress; -his last day of study was 22 August 2018; -his education provider advised in an email that the applicant’s attendance was 48.30%, and the applicant failed all three subjects for which he was enrolled; -his other Certificate of Enrolment (CoE) in the Bachelor of Biomedical Science was consequentially cancelled by the education provider on 21 December 2018; -he did not hold any enrolment from 21 December 2018 until 3 April 2019; -he obtained the further CoEs at Macallan College Pty Ltd on 4 April 2019 in Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Mechanical Diagnosis, and a Diploma of Automotive Technology; -on 25 September 2019, his CoE in the Certificate III in Light Vehicle Mechanical Technology was cancelled due to unsatisfactory course progress; -his CoEs in the Certificate IV in Automotive Mechanical Diagnosis and the Diploma of Automotive Technology were also cancelled on 25 September 2019; and-his education provider Macallan College Pty Ltd advised that the applicant’s attendance was 8% and he only did one unit (AURAEA002) for which was not competent.

Decision

Reasons for decision

In balancing the circumstances above, the Tribunal concludes that the visa should not be cancelled. The applicant has one last chance to demonstrate that he is a genuine student. DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.Joseph LindsayMember

Ratio Decidendi

Legal Principle Established

Accordingly, the Tribunal finds that the applicant is not, or is likely not to be, a genuine student and that there are grounds for cancellation of his student visa under s. 116(1)(fa)(i) of the Act. 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 circumstances in which the ground for cancellation arose In the hearing, the Tribunal discussed the applicant’s circumstances. The applicant explained that he came from Pakistan. He explained that, before he came to Australia, he had never really been apart from his family. He said he was almost 20 years old when came to Australia and he did not have lot of experience. He then said there were some problems that involved his sister. He explained that his sister had experienced marital problems and that a lot of stress had occurred as a result of this situation. He explained that these events occurred in around 2017, prior to him coming to Australia in 2018. He also explained that his uncle had died in around 2018, and this also caused a lot of stress to the family. He said that the stress caused him to have difficulty in studying. He said he thought he could do another course. The applicant said he initially wanted to be a medical practitioner, and that was why he wanted to study biomedical science. However, the applicant explained that he thought he could do an easier course. When asked how enrolling in a mechanics course was consistent with his apparent ambition to become a medical practitioner, the applicant indicated that he had received advice that this was an option for him to enrol in a mechanics course. When asked why his course enrolment in mechanics ended so quickly, the applicant explained that the new course did not feel right for him. The applicant said he knew he should have been studying given he held a student visa but he said he wasn’t thinking property. He said he now realised the consequences and now has a better understanding. The Tribunal spoke with the applicant about his response to the Department, including the medical certificate from a medical practitioner dated 22 May 2019 indicating that the applicant was unfit to attend school from 22 May 2019 to 24 May 2019. However, the applicant conceded that he was not trying to suggest that his inability to attend school from 22 May 2019 to 24 May 2019 explained why he had not meaningfully participated in courses since the grant of his visa. In respect of the above, the Tribunal makes the following findings. The Tribunal accepts that the applicant may have experienced stress due to his sister’s marital situation, and due to his uncle passing away. The Tribunal accepts that the applicant was relatively young and inexperienced when he first came to Australia. The Tribunal accepts that the applicant was relatively immature when he first came to Australia. Accordingly, the Tribunal places high weight on this information in favour of the applicant. The purpose of the visa holder’s travel to and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia