Deol (Migration) - [2019] AATA 2446

Deol (Migration) [2019] AATA 2446 (30 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurtej Singh Deol
CASE NUMBER:  1802653
HOME AFFAIRS REFERENCE(S):           BCC2017/4010000
MEMBER:Nicola Findson
DATE:30 June 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 30 June 2019 at 10:48pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – ceased to be enrolled in a Higher Education Sector course – consideration of discretion – struggled with original courses – significant health issues – new study pathway – issues with course providers – genuine intention of pursuing higher education study – actively engaging in studies since arrival – reliance on misinformed advice – remedied breach upon notice – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.40A; Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 1 February 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) of the Act on the basis that the delegate found the applicant had breached condition 8516 which was attached to his Subclass 573 Higher Education Sector visa. The delegate went on to consider that the factors in favour of cancellation outweighed those against, and cancelled the 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.
The applicant appeared before the Tribunal on 17 April 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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.
A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8516 attached to the applicant’s visa. Condition 8516 requires…

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 Deol (Migration)

Details

AGLC: Deol (Migration) [2019] AATA 2446
Case: [2019] AATA 2446
Decision Date: 30 June 2019

CaseChat Overview and Summary

This matter concerned an appeal against the Minister's decision to cancel the applicant's Subclass 573 Higher Education Sector visa. The applicant, who had been granted the visa based on enrolment in a higher education course, was found by the delegate to have breached condition 8516 of his visa by ceasing to be enrolled in a qualifying course of study. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue was whether the applicant had failed to comply with condition 8516, which mandates the continued satisfaction of primary criteria for the visa, including maintaining enrolment in a specified course. The Tribunal also had to consider whether, having found a breach, it was appropriate to exercise the discretion to cancel the visa, taking into account all relevant circumstances, including departmental policy and the applicant's personal situation.

The Tribunal found that the ground for cancellation did exist, as the applicant had ceased enrolment in a course that met the criteria for his visa subclass. However, in considering the exercise of discretion, the Tribunal had regard to the applicant's evidence. This included his struggles with the original course due to differences in educational systems and his youth, significant health issues that resurfaced, and reliance on advice from a migration agent regarding a new study pathway. The Tribunal noted that the applicant had actively engaged in studies since his arrival, had paid substantial fees, and believed he was complying with his visa conditions based on the agent's advice. The Tribunal concluded that, in light of these circumstances, the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 573 Higher Education Sector 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 set aside.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. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8516 attached to the applicant’s 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 is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind of a kind 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: cl.573.231.Does the ground for cancellation exist? The applicant provided to the Tribunal a copy of the delegate’s decision record, for the purpose of the review. The decision record indicates that on 2 July 2015, the applicant was granted a visa in Subclass 573 Higher Education Sector on the basis of his enrolment in a higher education sector level course. According to the delegate’s decision record, the applicant has not been enrolled in a Bachelor’s degree or Masters degree course since 4 February 2016, and that he is not currently enrolled in a course of study that is a principal course of a type specified for a Subclass 573 visa, by the Minister, in an instrument made under regulation 1.40A. On 16 January 2018, the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that he had failed to comply with condition 8516 of his visa, because he had ceased to be enrolled in a Higher Education Sector course. The applicant provided a response to the Department on 19 January 2018, in which he indicated that he arrived in Australia to study a Diploma of Business at the Phoenix Academy leading to a Bachelor of Business at Edith Cowan University; he struggled with his choice of course, and so decided to switch his pathway; and he always intended completing a Bachelor degree in Australia. The delegate found that the applicant breached condition 8516 of the visa because he no longer satisfied the primary criteria as he ceased to be enrolled in a higher education course, that is, a course of study that was the principal course required by cl.573.231.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.Nicola FindsonMember

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’. It is well established that the function of the Tribunal is to arrive at the correct or preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60). That case also considered the role of policy, and the Tribunal has had regard to Departmental policy. The applicant gave evidence to the Tribunal that he completed his secondary schooling in India. He told the Tribunal that after he completed his schooling, he wanted to come to Australia to pursue a tertiary qualification, before returning home to settle in to a career. He confirmed he was granted his visa on the basis of his enrolment in his principal course of study, a Bachelor of Business. The applicant provided evidence to the Tribunal that he commenced a Certificate III in Business Management at the Phoenix Academy, immediately on his arrival in Australia in July 2015. However, despite attending all the classes for the following six months and his best efforts, he found it difficult to meet the requirements of the course. He indicated to the Tribunal that he found the education system in Australia to be very different to India. He said because of this, and his young age, he struggled to settle and adjust. He indicated, and the documentary evidence supports, that his feelings of stress and failure led to a dormant thyroid health issue resurfacing, and he suffered significant symptoms of weight loss (30 kilograms), tiredness, shaking hands and depression. He said that after speaking with his family, a decision was made for him to return to India to consult his medical practitioner and resume medication. He said that he spent a two week period in India between 13 and 26 January 2016, and on his return to Australia, despite having paid several thousand dollars in fees upfront, he was informed by his education provider that his CoE’s were to be cancelled. The applicant told the Tribunal that he wanted to stay in Australia and study, so, he consulted a migration agent and on his advice enrolled in another package of (commercial cookery) courses at the Kingston College, which it was hoped he would find easier. He told the Tribunal that he was unable to start his new package of courses immediately, and so to maintain an enrolment, his agent first enrolled him in (and he undertook) a marketing course. The applicant claimed that he was led to believe by his agent that he would arrange his enrolment in a Bachelor degree course to comply with his visa conditions, in conjunction with the Kingston College. The applicant indicated to the Tribunal that he did not have any reason to doubt the advice he had received and at this time believed he was not breaching any visa conditions. He also indicated he enjoyed his new study pathway. He said he completed the marketing units in which he was enrolled over a two month period and then successfully completed several cookery units after that.