Baig (Migration) - [2024] AATA 2195

Baig (Migration) [2024] AATA 2195 (5 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mohid Ejaz Baig
REPRESENTATIVE:  Liuzhuo Chen (LPN 5512200)
CASE NUMBER:  2217018
HOME AFFAIRS REFERENCE(S):          BCC2022/2199827
MEMBER:Christine Kannis
DATE:5 April 2024
PLACE OF DECISION:  Perth
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 05 April 2024 at 7:38am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa –applicant has breached condition 8202 – was not enrolled in a full-time registered course – chronic health problems – applicant gave an incorrect answer in the visa application – applicant suffers severe depression, anxiety and stress – Tribunal does not accept that the circumstances in which the ground for cancellation arose were beyond the applicant’s control – written and oral evidence in relation to the applicant’s skin condition – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 15 November 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his 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.
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 March 2024 by MS Teams video to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the applicant’s brother, Mr Ehab Ejaz Baig and from a friend, Mr Muhhamad Abdur Rehman Khalil.
The applicant was represented in relation to the review.
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
Procedural matter
The hearing of this matter was originally listed for 27 February 2024. On 14 February 2024, the applicant’s representative requested the hearing be rescheduled because the applicant was to participate in clinical trials due to his medical condition of hidradenitis suppurativa. The representative advised the clinical trials were due to commence on 15 February 2024 and the trial medications would begin on 29 February 2024. The request to reschedule was accompanied by a Main Participant Information Sheet/Consent Form. The Information Sheet stated that participation was voluntary and the Consent Form provided was a blank form and had not been completed. No evidence that the applicant had been accepted to participate in the clinical trials was provided.
The Tribunal noted that on 9 January 2024 the applicant was sent an Invitation to…

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 Baig (Migration)

Details

AGLC: Baig (Migration) [2024] AATA 2195
Case: [2024] AATA 2195
Decision Date: 5 April 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Baig, who sought review of a decision to cancel his Subclass 500 (Student) visa. The cancellation was based on the applicant's failure to maintain enrolment in a full-time registered course, thereby breaching visa condition 8202. The applicant contended that his non-compliance was due to chronic health problems, including severe depression, anxiety, and stress, exacerbated by the COVID-19 pandemic and difficulties with online study.

The primary legal issue before the Tribunal was whether the discretion to cancel the applicant's visa should be exercised, given the circumstances. While the Tribunal was satisfied that the ground for cancellation existed under section 116(1)(b) of the Migration Act 1958, this ground did not mandate cancellation. Therefore, the Tribunal was required to consider the applicant's submissions and other relevant matters in deciding whether to exercise its discretionary power to cancel the visa.

The Tribunal acknowledged the applicant's reported physical and mental health issues during the period of non-enrolment. However, it found a lack of medical evidence to substantiate the claim that these health issues directly precluded enrolment during that specific period. The Tribunal also noted that the applicant was able to enrol in new courses shortly after being contacted by the Department, despite not seeking medical assistance until after receiving the Notice of Intention to Consider Cancellation. Despite these reservations, the Tribunal concluded that, on balance and considering all circumstances, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Baig'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

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Decision

Reasons for decision

This has been a difficult decision because although the Tribunal accepts that the applicant experienced physical and mental health issues during the period of non-enrolment, there was no medical evidence to substantiate his contention that the health issues precluded enrolment during that period. Further, as noted, he was able to enrol without delay after the Department contacted him in August 2022, despite not seeking medical assistance until after receipt of the NOICC. The Tribunal recognises that the cancellation of the visa is a significant matter and on balance, and 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 500 (Student) visa.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(1) The holder must be enrolled in a full time course of study or training if the holder is:(a)a Defence student; or(b) a Foreign Affairs student; or(c) a secondary exchange student.(2) A holder not covered by subclause (1):(a) must be enrolled in a full time registered course; and(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:(a) is enrolled in a course at the Australian Qualifications Framework level 10; and(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.

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 to exercise its discretion to cancel the visa.Consideration of the discretion to cancel the visa 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, the witnesses and the representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. On 25 August 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 12 April 2021 until 16 August 2022 and had therefore failed to comply with condition 8202(2)(a) of his visa. Response to NOICC On 1 September 2022, the applicant responded to the NOICC in a submission from his representative which provided the following information:·He came to Australia on Student Visa Subclass (500) and completed Bachelor of Information Technology. ·He held a Subclass 485 Temporary Graduate Visa and after that applied for Student Subclass (500) visa to study Master of Business Analytics from Kaplan Business School. ·He became ill and had to relinquish his studies. He was not able to continue with the same provider due to COVID-19 and his difficulty studying online. He has never studied online in Pakistan. He tried to address this issue with the student support of Kaplan, but nobody helped him.·If his visa is cancelled his career prospects will be ruined which will cause socio-economic problems for his parents who would have spent their earnings on him. ·He could not study from 14 April 2021 to July 2022 due to chronic health problems and COVID-19. He lost his job due to COVID-19. He was of scared of the pandemic. He had thoughts about whether he would recover, whether he would meet his family again and whether he would be able to visit his country again. He was lonely and intending to see his parents but it wasn’t possible and that was killing him from inside. Due to this he stopped going out, talking to friends and lost his appetite. Furthermore, he was not used to studying online and the provider did not help him. Nobody in the institute took his calls or replied to emails and they cancelled his CoE. He applied for deferment but it was denied before cancelling. ·He wants to complete a Diploma and Advanced Diploma of Leadership and Management so he can operate his own IT company in Pakistan. International studies, especially from Australia provides a chance in the local market for jobs and for business. ·The irregularities in his studies are due to his ill health and COVID-19. At the time of responding to the NOICC, the applicant provided CoEs for Diploma of Leadership and Management and Advanced Diploma of Leadership and Management courses, both of which were created on 16 August 2022. No medical evidence was provided at the time of responding to the NOICC.Evidence provided prior to hearing