Brahma (Migration) - [2020] AATA 726

Brahma (Migration) [2020] AATA 726 (17 March 2020)

DECISION RECORD

DIVISION:		Migration & Refugee Division
APPLICANT:		Mr Shilpee Brahma
CASE NUMBER:		1921619
HOME AFFAIRS REFERENCE:		BCC2019/1830137
MEMBER:		Dr Jason Harkess
DATE:		17 March 2020
PLACE OF DECISION:		Melbourne
DECISION:		The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 17 March 2020 at 3:35pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) –not enrolled in registered course – poor academic performance and change of course – father’s ill health and medical treatment – arranged marriage and breakdown of relationship – mental health – one psychological consultation – visa would have expired in any case – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 119

Migration Regulations 1994 (Cth), Schedule 2, cl 500.611(1)(a), Schedule 8, condition 8202(2)(a)

CASES

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

Shoukat v Minister for Home Affairs [2020] FCA 194

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

The Applicant is a citizen of India and is 31 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 30 July 2019 cancelling his Student (Temporary) (Class TU) Subclass 500 visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant lodged his review application with the Tribunal on 5 August 2019.

Original Visa Grant

The Applicant’s visa was granted on 28 November 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 September 2019 before it was cancelled. It provided for more than 22 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 Master of Professional Accounting at Holmes Institute (‘Holmes’). It was the Applicant’s second student visa, the first having been granted in June 2015 which provided for an initial stay period of just over two years.

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 with that condition of his visa which required him to continue to be enrolled in a full-time registered course of study.
Upon making that finding, the delegate proceeded to consider all other relevant circumstances before…

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.

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Details

Case: [2020] AATA 726
Decision Date: 17 March 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal affirmed the delegate's decision to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 500. The applicant, Mr. Brahma, had been granted the visa to undertake a Bachelor of Commerce degree. The cancellation was based on the applicant's failure to maintain enrolment in a registered course and his unsatisfactory academic performance. The applicant sought review of this decision, citing a range of personal circumstances including his father's ill health and medical treatment, an arranged marriage that subsequently broke down, and his own mental health concerns, for which he had undergone one psychological consultation.

The Tribunal was required to determine whether, in light of the applicant's personal circumstances, it was reasonable to have cancelled the visa, and if not, whether the cancellation should be set aside. This involved considering the applicant's compliance with the conditions of his visa, particularly those relating to satisfactory academic progress and maintaining enrolment in a registered course, as well as the weight to be given to his mitigating circumstances.

The Tribunal acknowledged the applicant's personal difficulties but found that they did not outweigh the clear breaches of his visa conditions. It noted that the applicant had failed to provide evidence of satisfactory academic performance and had not maintained enrolment in a registered course. While the personal circumstances were considered, the Tribunal concluded that they did not provide a sufficient basis to depart from the delegate's decision, especially as the visa would have expired in any event. The Tribunal applied the principles of administrative review, balancing the applicant's circumstances against the legislative requirements for visa validity.

The Tribunal affirmed the delegate's decision to cancel the applicant's visa.

Orders