Bin Hadyan (Migration) - [2020] AATA 5058

Bin Hadyan (Migration) [2020] AATA 5058 (15 October 2020)

DECISION RECORD

DIVISION:		Migration & Refugee Division
APPLICANT:		Mr Bander Suliman A Bin Hadyan
CASE NUMBER:		1933484
HOME AFFAIRS REFERENCE:		BCC2019/3261914
MEMBER:		Dr Jason Harkess
DATE:		15 October 2020
PLACE OF DECISION:		Melbourne
DECISION:		The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa

Statement made on 15 October 2020 at 11:52am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) (Subclass 500) visa – not registered in approved course – alcohol abuse – accidents – genuine intention to rehabilitate – genuine desire to study – decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 116(1)(b), 140, 189, 198
Migration Regulations 1994, Condition 8202(2)(a)-(b)

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

The Applicant is a citizen of Saudi Arabia and is 28 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 19 November 2019 cancelling his Student (Temporary) (Class TU) Subclass 500 visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

Original Visa Grant

The Applicant’s visa was granted on 16 February 2017. It was granted because a delegate of the Minister had determined that he met the primary criteria for the grant of a student visa.[1]
[1] The primary criteria for the grant of a student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.
The visa had an original expiry date of 30 August 2021 before it was cancelled. It provided for more than four years six months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study. Specifically, the visa had been granted so that the Applicant could complete a Standard Foundation Program, a Diploma of Engineering and a Bachelor of Engineering (with Honours) at Macquarie University.

Reasons for Cancellation

The Applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s 116(1)(b) of the Act. The delegate found that the Applicant had not complied certain conditions of his visa. The delegate found that the Applicant had failed to comply with that condition of the visa which required him to:
(a)maintain enrolment in a registered course of study (Condition 8202(2)(a)); and
(b)maintain enrolment in a registered course of study that, once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted (Condition 8202(2)(b)).
The delegate’s reasons are set out in a decision record. That decision record was provided to the Applicant when he was notified that his visa had been cancelled on 19 November 2019.[2] By lodging his review application, the Applicant contends that the…

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.

Keep reading for free

Create a free CaseChat account to read Bin Hadyan (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] AATA 5058
Decision Date: 15 October 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr Bin Hadyan concerning the cancellation of his Student (Temporary) (Class TU) (Subclass 500) visa. The visa was cancelled on the grounds that Mr Hadyan was not enrolled in an approved course of study and had engaged in alcohol abuse, which led to accidents. The core of the dispute revolved around whether Mr Hadyan demonstrated a genuine intention to rehabilitate from his alcohol abuse and a genuine desire to study in Australia.

The Tribunal was required to determine whether the delegate's decision to cancel Mr Hadyan's visa was the correct or preferable one. This involved assessing whether Mr Hadyan met the character and other relevant requirements for holding a Student visa, particularly in light of his conduct. The Tribunal had to weigh the evidence presented regarding his alcohol abuse and accidents against any evidence demonstrating his commitment to rehabilitation and his genuine intention to pursue his studies.

In its reasoning, the Tribunal acknowledged the seriousness of the grounds for cancellation, including alcohol abuse and associated accidents. However, it placed significant weight on the evidence presented by Mr Hadyan concerning his genuine intention to rehabilitate and his desire to study. The Tribunal found that Mr Hadyan had taken steps towards rehabilitation and that his desire to study was genuine. Consequently, the Tribunal concluded that the delegate's decision to cancel the visa was not the correct or preferable one. The Tribunal set aside the decision under review.

Orders