CHIDDAMSETTY (Migration) - [2020] AATA 615

CHIDDAMSETTY (Migration) [2020] AATA 615 (3 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Abhilash Chiddamsetty
CASE NUMBER:  1827297
HOME AFFAIRS REFERENCE(S):          BCC2018/1903374
MEMBER:David McCulloch
DATE:3 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Statement made on 03 March 2020 at 3:40pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine student – has not completed course – robbed – temporary financial issues – could not cope with study – did not enrol when funding available – lack of extenuating circumstances – lack of academic progress – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth),r 2.43
CASES

MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).
The applicant is a national of India, born on 6 March 1994. The visa that has been cancelled was granted on 16 November 2016. The stay period on the visa was until 15 March 2019.
On 29 August 2018, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Act. The applicant did not respond. On 13 September 2018, the delegate decided to cancel the Student visa held by the applicant under s.116(1)(fa) of the Act because the delegate formed the view that the applicant was not a genuine student.
The applicant sought review of that decision. The issues that arise on review are:
a.does the ground for cancellation exist?
b.if so, should the visa be cancelled?
The applicant appeared before the Tribunal on 25 February 2020 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing. The applicant communicated with the Tribunal in English.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
RELEVANT LAW
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)(fa). 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, as set out in the Departmental guidelines, Procedures Advice Manual (PAM3).
A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged,…

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 CHIDDAMSETTY (Migration)

Details

AGLC: CHIDDAMSETTY (Migration) [2020] AATA 615
Case: [2020] AATA 615
Decision Date: 3 March 2020

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Chiddamsetty against the cancellation of his Subclass 500 (Student) visa. The dispute arose from the Department's decision to cancel his visa on the grounds that he was not a genuine student and had not completed his course of study. The Administrative Appeals Tribunal was tasked with reviewing this decision.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) existed, and if so, whether to exercise its discretion to cancel the visa. This involved assessing whether the applicant had failed to satisfy the requirements of being a genuine student, considering any extenuating circumstances he might have faced.

In its reasoning, the Tribunal considered the applicant's claims of temporary financial issues and being robbed, acknowledging these may have contributed to his inability to pay fees for a period. However, the Tribunal found that these issues did not constitute medium or long-term funding difficulties, particularly as funding became available later. Crucially, the applicant did not re-enrol after funding was secured. Furthermore, the Tribunal noted the applicant's academic performance, having failed all four units in his first semester, and did not consider an inability to cope with studies as an extenuating circumstance beyond his control. The Tribunal concluded that the circumstances as a whole warranted the cancellation of the visa.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 500 (Student) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

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 500 (Student) visa.David McCullochMemberATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994…(1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.(1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:(a)because of the conduct of the holder; or(b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or(c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or(d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.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’. These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose (whether there are extenuating circumstances beyond the visa holder’s control); the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (ie. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations, provisions in the Act which prevent the person making a valid application without the intervention of the Minister, whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non refoulement obligations; and any other relevant matters. The applicant has made various claims in terms of extenuating circumstances beyond his control for his failure to be a genuine student. The applicant has indicated temporary finance issues in terms of being able to pay his fees for the second semester of 2017 of his Master’s of Engineering. However, the Tribunal does not consider that these created medium or long-term funding difficulties because, on the applicant’s own evidence, the funding became available in October 2017. The Tribunal is prepared to accept for the purpose of this decision that these temporary funding issues were at least part of the reason that the applicant’s enrolment in the Master’s of Engineering was cancelled. However, adverse to the applicant is that he did not re-enrol in the Master’s after funding became available. It is more readily apparent to the Tribunal that the applicant was not able to cope with his Master’s degree. On the applicant’s own evidence he failed four of four units that he studied in the first semester of 2017. The Tribunal would not take an inability to cope with his studies as an extenuating circumstance beyond the applicant’s control. The applicant obtained the higher education sector visa with an expectation of appropriate performance within that level of study.