Bhullar (Migration) - [2022] AATA 3557

Bhullar (Migration) [2022] AATA 3557 (8 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurkirpal Singh Bhullar
REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)
CASE NUMBER:  2201653

HOME AFFAIRS REFERENCE(S): BCC2020/802730
MEMBER:Christine Kannis
DATE:8 October 2022
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 08 October 2022 at 11:53am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – failure to comply with condition of visa – not enrolled in full-time registered course – completion of lower-level courses then cessation, non-commencement and non-payment of higher-level courses – parents’ financial problems, applicant’s mental health and COVID restrictions – new enrolment made shortly before department’s notice issued now cancelled – discretion to cancel visa – no supporting evidence provided – no extenuating or compassionate circumstances or compelling reasons to remain in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 8, condition 8202(2)(a)
Education Services for Overseas StudentsAct 2000 (Cth), s 19(3)
CASE
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 4 February 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 by MS Teams video on 4 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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 affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.
Did the applicant comply with Condition 8202?
The applicant was granted his initial Student visa 22 September 2015 and arrived in Australia on 30 September 2015. This Student visa ceased 21 May 2019.
On 5 July 2019 the applicant was granted a further Subclass 500 (Student) visa with condition 8202 attached. As part of his visa application he provided his Advanced Diploma of Hospitality Management, which he completed on 21 May 2019. The applicant identified…

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 Bhullar (Migration)

Details

AGLC: Bhullar (Migration) [2022] AATA 3557
Case: [2022] AATA 3557
Decision Date: 8 October 2022

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr. Bhullar, against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 500. The Department of Home Affairs had cancelled the visa on the grounds that the applicant had failed to comply with condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a full-time registered course. The applicant contended that he had not breached the condition and sought to have the cancellation decision reviewed.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of his visa. This condition, as it applied to the applicant, required him to be enrolled in a full-time registered course, maintain enrolment in a course at the same or higher Australian Qualifications Framework (AQF) level as his previous course, and ensure satisfactory course progress and attendance. The Tribunal also had to consider whether, if a breach had occurred, there were any extenuating circumstances or compelling reasons that warranted the exercise of discretion to set aside the cancellation.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) by ceasing to be enrolled in a registered course. While the applicant provided a new Confirmation of Enrolment (CoE) shortly before the Department issued its notice of intention to cancel, this enrolment was made after the breach had occurred. The Tribunal considered the applicant's explanations regarding his mental health struggles, financial difficulties, and the impact of COVID-19 restrictions, acknowledging these as significant challenges. However, the Tribunal concluded that these circumstances, while noted, did not provide a sufficient basis to override the departmental decision. 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

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 The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.Did the applicant comply with Condition 8202? The applicant was granted his initial Student visa 22 September 2015 and arrived in Australia on 30 September 2015. This Student visa ceased 21 May 2019. On 5 July 2019 the applicant was granted a further Subclass 500 (Student) visa with condition 8202 attached. As part of his visa application he provided his Advanced Diploma of Hospitality Management, which he completed on 21 May 2019. The applicant identified he had a letter of offer for a Bachelor of Business from Group Colleges Australia to commence study on 2 September 2019. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:·be enrolled in a full-time registered course: 8202(2)(a)·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii). The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2] [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.

Decision

Reasons for decision

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 Class TU 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 prior and during the hearing, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. On 24 January 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 and was therefore failing to comply with condition 8202(2)(a) of his visa. Response to NOICC On 31 January 2022, the applicant responded to the NOICC and advised that:I want to state that I have not breached the condition as I have valid COE. At the time of responding to the NOICC the applicant provided a CoE for a Graduate Diploma of Management (Learning ), created on 28 January 2022.Pre-hearing evidence Prior to the hearing the applicant provided the following documents:·Certificate III in Commercial Cookery issued 6 July 2017·Statement of Results for Certificate III in Commercial Cookery issued 6 July 2017·Statement of Results for Certificate IV in Commercial Cookery issued 8 January 2018·Statement of Results for Diploma of Hospitality Management issued 30 October 2018·Letter dated 17 December 2018 from Pax Institute of Education stating that the applicant successfully completed a Certificate IV in Commercial Cookery qualification from 13 June 2017 to 11 December 2017·Letter dated 17 December 2018 from Pax Institute of Education stating that the applicant successfully completed a Diploma of Hospitality Management qualification from 12 April 2018 to 3 October 2018·To Whom It May Concern statement dated 16 May 2019 from Pax Institute of Education stating that the applicant is enrolled in Advanced Diploma of Hospitality Management from 19 November 2018 to 19 May 2019. The document lists the Units studied and the grades achieved. The applicant also provided a written statement dated 30 September 2022 in which he said:Re: to explain the circumstances surrounding my refusalI came to Australia on a student visa in 2015 and had big dreams of studying here. I was ready to work hard for my dreams and had prepared myself for hard work. I wassupposed to study Advanced Diploma of Hospitality Management. I completed that diligently by 21 May 2019.I was later supposed to start working on Bachelor of Business from Group Colleges Australia which was supposed to start on 2 September 2019. Unfortunately, my mental health started taking a turn for the worse during that time. I was struggling to make ends meet due to lack of enough work here and my parents could not help me either. So, I decided to save up enough money to pay for the fees. Unfortunately, the college did not pay attention to my pleas and they cancelled my COE on 28 August 2019.I was even more stressed as I thought my dreams to study were finally over. I did not want to completely let go of my dreams. I talked to my parents about it and they encouraged me to try and stand up on my feet 30/09/2022 too. I was finally getting better in the beginning of 2020, when the pandemic hit Australia.Australia was affected by the pandemic and everything was on lockdown here. however, the situation worsened in 2020 due to the outbreak of COVID-19 pandemic. There was a strict lockdown and we were all scared due to this new and deadly virus. I was restricted to indoors and my mental health worsened even more. I was having more panic attacks and more depressive episodes than usual due to no social interaction and the uncertainty due to the pandemic. I was worried about their mental and physical health. I also suffered from financial instability as most of the businesses at the time were shut down and many jobs were lost and hours cut down. This whole led to my own mental health worsening with time as I was unable to even save a penny to restart the course. It was impossible for me to study at that time as I was in no state to focus on anything and was in survival mode. Thus I did not study any course during that time and there was a gap. Moreover, my parents lost money too during COVID-19 and I could not go and meet them. They were as scared and paranoid as I was as we were seeing death in the neighbourhood. I was very worried about my parents as they are old and have weaker immune systems than I do. Moreover, people in India were not taking care of masking up and that was something that was unfortunate and made the pandemic worse.With the time passing and around the end of 2020, my condition started getting better. I was able to get out of the house and start working properly again. I tried to busy myself in things such as meeting my friends again. They decided to hold an intervention for me and encouraged me to study again. They remembered how passionate I was about the course I had 30/09/2022 taken and how I wanted to open my own restaurant in my home country. They also suggested me colleges to apply to and how to save properly. I talked to my parents about my needs and my passion. They were extremely happy to hear that I wanted to resume study and were willing to support me. I worked throughout the year 2021 and was able to save enough by the end to afford my course fee for year 2022. I decided to apply for the course. I finally got admission in Hilton academy on 28 January 2022. I was very enthusiastic about resuming my studies. But in an unfortunate turn of events, I received the Notice of Intent to consider cancellation (NOICC) from the Department on 4 February 2022. The Department subsequently cancelled my visa. It was disheartening for me and I decided to file for a review as I wanted to continue studying. Thus I can safely assure you that I am a genuine student. The sole purpose of applying for a student visa was to complete my studies. The circumstances in 2020 were out of my control and I was unable to resume my studies. Evidence at hearing