Brar (Migration) - [2023] AATA 4230

Brar (Migration) [2023] AATA 4230 (2 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Vijaypal Singh Brar
REPRESENTATIVE:  Mrs Preeti Puri (MARN: 0960289)
CASE NUMBER:  2216040
HOME AFFAIRS REFERENCE(S):          BCC2022/2198756
MEMBER:Christine Kannis
DATE:2 December 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 02 December 2023 at 8:14am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – family bereavement – financial hardship – relationship with a partner in Australia – multiple course cancellations – limited academic progress – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 189, 198, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03
CASES
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 27 October 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 20 November 2023 to give evidence and present arguments.
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?
On 29 May 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
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…

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 Brar (Migration)

Details

AGLC: Brar (Migration) [2023] AATA 4230
Case: [2023] AATA 4230
Decision Date: 2 December 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Brar, who sought review of the cancellation of his Student (Temporary) (Class TU) visa, subclass 500. The Department of Home Affairs had initiated cancellation proceedings due to Mr. Brar's failure to maintain enrolment in a registered course, thereby breaching visa condition 8202(2)(a).

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the Tribunal should exercise its discretion to cancel the visa. The Tribunal was required to consider the applicant's submissions regarding his cessation of enrolment, which included family bereavement, financial hardship, and a desire to maintain a relationship with his partner in Australia, against the Department's concerns about multiple course cancellations and limited academic progress.

The Tribunal found that the ground for cancellation under section 116(1)(b) was satisfied because Mr. Brar had ceased to be enrolled in a registered course. In exercising its discretion, the Tribunal acknowledged the significant impact of visa cancellation but, on balance, concluded that the circumstances warranted cancellation. The Tribunal affirmed the decision to cancel Mr. Brar'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

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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, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. On 12 September 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 August 2020 and had therefore failed to comply with condition 8202(2)(a) of his visa. Response to NOICC On 27 September 2022, the applicant responded to the NOICC and provided the following information:·He received an email which stated he had not been enrolled in a registered course of study since August 2018. He is currently enrolled in Diploma of Management starting on 24 October 2022 and through this course he wants to complete units he missed earlier. He was supposed to finish this course in one go but due to distraction of mind from studies and changing of course he couldn’t complete it. ·A lot of things happened during the period from 12 August 2020 until now. His father was sick and suffering from leukaemia. He would have chosen to visit him but due to COVID-19 there was no assurance of coming back or getting stuck in a big hall as a quarantine thing in India. Also, a lot of money was already gone in his father’s treatment so he hesitated asking for money and had no money for school fees that year which resulted in cancellation of his CoE.·After his CoE was cancelled he started to look for an alternative plan to keep up with the rules and regulations but after two months, on 22 November 2020, his father passed away. He couldn’t see him or do the last rituals which completely broke him as his father was the first reason he was here so he could see him somewhere better and established because his father lived his life in dust and dirt being a farmer.·He has a debt from a 2017 car crash which he is repaying in instalments, which is not to be worried about but it has a little effect on life when it comes to debt. ·He has now enrolled in a Diploma of Business with the credits transcript and he wants to finish at least one full course and not be hanging with few units.·Another reason he doesn’t want his visa to be cancelled is that he has a partner in Australia and for one year he has been trying to move in but due to no luck with rental properties he is finding it hard but they have plans for moving in together by the beginning of next year. ·If his visa is cancelled, it will be a big failure for him and his future life and he won't be able to deal with this. It will destroy his confidence and willpower. All these years had always brought him something due to which he was mentally and physically disturbed. He has now recovered and he doesn’t want to go back to that situation. He is sure he will not be to able deal with this again.