Bui (Migration) - [2019] AATA 4171

Bui (Migration) [2019] AATA 4171 (2 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Thi Mai Chi Bui
CASE NUMBER:  1833624
HOME AFFAIRS REFERENCE(S):           BCC2018/4026316
MEMBER:Mark Bishop
DATE:2 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 02 September 2019 at 11:23am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – maintain enrolment in the higher education sector – consideration of discretion – pending Partner visa application – no compelling need to remain in Australia – significant period of breach – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516
CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 12 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant was no longer enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 2 September 2019 to give evidence and present arguments. Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant provided a copy of the decision record to the Tribunal. The applicant was assisted by her Migration Agent.
The applicant and the husband of the applicant gave evidence to the Tribunal
The applicant advised the Tribunal she came to Australia in 2014. She advised she did not continue study in Australia after completion of some and ELICOS and VET courses because she got married in January 2018 and wished to look after her husband. The applicant advised she did not study after October 2016. She said her English was no good. At a later stage of the review hearing the applicant provided copies of completion of English language courses and Business courses in the VET sector in the period 2015 to 2017. See paragraph 26 hereunder.
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
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider…

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 Bui (Migration)

Details

AGLC: Bui (Migration) [2019] AATA 4171
Case: [2019] AATA 4171
Decision Date: 2 September 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), held by Ms. Bui. The dispute arose from the Minister's decision to cancel Ms. Bui's visa on the grounds that she had failed to continue satisfying the primary criteria for the visa, specifically by not maintaining enrolment in a higher education sector course.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established. This involved assessing whether Ms. Bui had complied with condition 8516 of her visa, which mandates the continued satisfaction of the primary or secondary criteria for the visa's grant. Specifically, the Tribunal had to consider whether Ms. Bui had maintained her enrolment in a principal course of study with an eligible education provider, as required by the criteria for her Subclass 573 visa.

The Tribunal reasoned that Ms. Bui had not complied with condition 8516 because records indicated she was no longer enrolled in a bachelor's or master's degree course, nor in a principal course of study as defined for her visa subclass. Consequently, the ground for cancellation was established. The Tribunal then considered whether to exercise its discretion to cancel the visa. It noted Ms. Bui's intention to remain in Australia to study and improve her employment prospects, but found that she had not completed any courses since 2017. While acknowledging her pending Partner visa application and her marriage in Australia, the Tribunal found these factors did not constitute a compelling need to remain in Australia, particularly given the significant period of non-compliance with her visa conditions.

The Tribunal affirmed the decision to cancel Ms. Bui'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 Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.Does the ground for cancellation exist?s.116(1)(b) - non-compliance with conditions A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 was attached to the applicant’s visa. This condition requires a visa holder continue to satisfy the primary or secondary criteria for the grant of a visa. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 12/037. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 12/037. The delegate made the following findings:·According to PRISMS the visa holder was no longer enrolled in a bachelor’s degree or master’s degree course;·According to PRISMS the visa holder was not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister made under the relevant instrument;·The visa holder no longer satisfied either subclauses 573.231 or 573.223(1A) and had not complied with condition 8516;

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.Mark BishopMember

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 the power to cancel the visa should be exercised.Consideration of discretion 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’.The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia The delegate outlined the applicant’s visa and immigration history as follows:·The visa holder was granted a Student visa for Australia on the basis of her intention to study at the Higher Education level specifically, a Bachelor of Business with Cambridge International College.·In her response to the Department, the visa holder stated she intended to remain in Australia to continue studying and gain a qualification to improve her future prospects for employment. At the time of the delegate’s decision according to PRISMS, the visa holder did not hold a confirmation of enrolment for her proposed course of study, Bachelor of Business. ·According to Departmental records on 27 June 2018, the visa holder lodged a valid application for a Partner visa, indicating that she now intends to remain in Australia permanently on the basis. The application is currently being processed. The applicant confirmed in evidence to the Tribunal this remained her current intention. If the Tribunal affirms the decision of the delegate to cancel the visa, the visa holder will be able to apply for a Bridging Visa E to allow her to lawfully remain in Australia while her Partner visa application continues to be processed. If I cancel the visa this will not affect her ability to be granted the visa, provided she can meet all relevant criteria. The Tribunal gives a little weight to this consideration in the visa holder’s favour. The applicant advised she came to Australia to improve her English language skill and study. She completed an English course at Certificate IV level in May 2015 and two courses in Business in 2016/2017. The applicant advises she had not completed any courses since that time. Her student visa was cancelled so she stopped attending school. Her father got cancer and passed away in 2019. She is now married. The applicant advised she wished to remain in Australia because she was married. The applicant advised she did not have any children. The applicant advised she was not working in Australia. The applicant advised she did not own any assets in Australia. The applicant advised she did not have any other reason compelling or otherwise excluding her marital status and concern for her husband’s health for remaining in Australia.