Dhillon (Migration) - [2019] AATA 1639

Dhillon (Migration) [2019] AATA 1639 (13 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sukhmanpreet Singh Dhillon
CASE NUMBER:  1815508
HOME AFFAIRS REFERENCE(S):           BCC2018/194546
MEMBER:David Thompson
DATE:13 May 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 13 May 2019 at 5:28pm

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 – kidney problems – life-threatening condition – extensive and compelling documentary evidence – decision under review set aside
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 24 May 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, having been granted a Subclass 573 student visa, was not during the period 25 July 2017 to 16 March 2018 enrolled in a course of study that was a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A, and for that reason failed during that period to comply with a condition of his visa. The condition in question was condition 8516. 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 10 April 2019 to give evidence and present arguments. As at the time of the hearing the applicant was offshore without a right of return, he participated in the hearing by telephone.
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)(b). 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?
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 8516 attached to the applicant’s visa.
Condition 8516 requires that…

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 Dhillon (Migration)

Details

AGLC: Dhillon (Migration) [2019] AATA 1639
Case: [2019] AATA 1639
Decision Date: 13 May 2019

CaseChat Overview and Summary

This matter concerned an appeal by an applicant, a citizen of India, against the cancellation of his Subclass 573 (Higher Education Sector) student visa. The applicant had been granted the visa to study for a Bachelor of Information Technology but subsequently changed his course of study and was later diagnosed with end-stage renal failure, requiring dialysis and a kidney transplant. The Administrative Appeals Tribunal (Cth) was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion not to cancel the visa.

The primary legal issue was whether the applicant had failed to continue to satisfy the criteria for his visa, specifically condition 8516 which requires the holder to maintain enrolment in a qualifying course. The applicant admitted he had not been enrolled in a higher education sector course between July 2017 and March 2018. The Tribunal was therefore satisfied that the ground for cancellation under section 116(1)(b) of the *Migration Act 1958* (Cth) was made out.

Despite the existence of the cancellation ground, the Tribunal considered whether to exercise its discretion not to cancel the visa. The Tribunal had regard to the applicant's circumstances, including his serious and life-threatening medical condition, the extensive documentary evidence of his ill health, and the fact that the cancellation ground did not mandate cancellation under section 116(3). The Tribunal concluded that the factors weighing against cancellation outweighed those in favour, leading to the decision to set aside the cancellation. The Tribunal substituted a decision not to cancel the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 Procedural Instructions (previously known as PAM3) ‘General visa cancellation powers’.Background The applicant is a citizen of the Republic of India. He was granted a subclass 573 student visa to study for the degree of Bachelor of Information Technology on 30 March 2015. He arrived in Australia on 11 April 2015 and commenced a University English Bridging Course 2. His Bachelor of Information Technology studies were due to start in the second semester of that year, but on the applicant’s evidence given at hearing he started attending lectures in that course in the first semester of 2015. The applicant finished his University English Bridging Course 2. However, the applicant’s PRISMS record (which was put to him in detail and strictly in accordance with the requirements of s. 359AA of the Migration Act 1958) shows that his enrolment in his Bachelor of Information Technology course was cancelled by reason of non-commencement of studies, and that in the second semester of 2015 (when his Bachelor of Information Technology studies were supposed to have commenced) he enrolled in and completed a Diploma of Management. The applicant attributes this change in course of study, and the considerable difficulty he experienced in his studies thereafter, largely to ill-health combined with the stress of studying at a higher level than he had previously experienced in a foreign country. On the applicant’s evidence given at hearing, he began to develop health issues whilst he was undertaking his University English Bridging Course, but he did not pay much attention to them at that stage. However, he soon began to suffer from frequent abdominal pains and other symptoms such as sleepiness and lethargy throughout the day. Before the end of 2015 he applicant’s symptoms came to include vomiting. It was, he said, his declining health that convinced him to seek advice regarding his enrolment in the Bachelor of Information Technology course. An education agent, whose name the applicant could not remember, recommended that he undertake a less taxing course. As a result, the applicant enrolled in a Diploma of Management course, as mentioned above. The Diploma of Management was the last course that the applicant was able to complete. On 1 January 2016 the applicant presented at the Armadale Hospital emergency department, as he was unable to see his general practitioner. He was then taken by ambulance to Royal Perth Hospital, where he was put onto dialysis for the first time. The applicant was diagnosed as in end stage renal failure, and thereafter spent considerable time in hospital on dialysis. The applicant’s evidence was that he nonetheless attempted to continue studying in courses offered at a level he could reasonable expect to undertake given his health. He enrolled in a package course in the vocational education and training sector consisting of Commercial Cookery Certificates III and IV, and a Diploma of Hospitality. However, at around the same time his doctors advised him that he required a kidney transplant as soon as possible. The process of seeking a suitable donor began, complicated by the fact that the applicant has a relatively rare blood type. It transpired that his maternal aunt was willing to donate one of her kidneys for transplant, and the applicant returned to India for the surgery.

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)(b). 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? 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 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 a criterion requiring the applicant to be enrolled, it has been held that this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679. It is alleged the applicant did not continue to satisfy either the criterion provided in subclause 573.223(1A) of Schedule 2 of the Migration Regulations 1994, or the criterion provided in subclause 573.231, in each case as they applied to the applicant at the date of his visa application. Subclause 573.223(1A) provides that an applicant must at the time of application be an eligible higher degree student (that is, enrolled in a principal course of study for the award of an advanced diploma in the higher education sector, a bachelor’s degree, or a masters degree by coursework). Subclause 573.231 provides that an applicant must, if subclause 573.223(1A) does not apply, be enrolled in or the subject of a current offer of enrolment in, a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A and in force at the time the application was made. At the outset of the hearing, the allegation of non-compliance, as noted above, was put to the applicant, and he was asked whether the allegation was true or not. The applicant readily admitted that he had not been enrolled in a bachelor’s or master’s degree course, or indeed any course in the higher education sector, between 25 July 2017 and 16 March 2018. 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 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 Procedural Instructions (previously known as PAM3) ‘General visa cancellation powers’.Background

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the factors tending against exercising the discretion to cancel the applicant’s visa outweigh the factors tending in favour of cancellation. The applicant’s visa should not, therefore, 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.David ThompsonMember

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 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 Procedural Instructions (previously known as PAM3) ‘General visa cancellation powers’.Background The applicant is a citizen of the Republic of India. He was granted a subclass 573 student visa to study for the degree of Bachelor of Information Technology on 30 March 2015. He arrived in Australia on 11 April 2015 and commenced a University English Bridging Course 2. His Bachelor of Information Technology studies were due to start in the second semester of that year, but on the applicant’s evidence given at hearing he started attending lectures in that course in the first semester of 2015. The applicant finished his University English Bridging Course 2. However, the applicant’s PRISMS record (which was put to him in detail and strictly in accordance with the requirements of s. 359AA of the Migration Act 1958) shows that his enrolment in his Bachelor of Information Technology course was cancelled by reason of non-commencement of studies, and that in the second semester of 2015 (when his Bachelor of Information Technology studies were supposed to have commenced) he enrolled in and completed a Diploma of Management. The applicant attributes this change in course of study, and the considerable difficulty he experienced in his studies thereafter, largely to ill-health combined with the stress of studying at a higher level than he had previously experienced in a foreign country. On the applicant’s evidence given at hearing, he began to develop health issues whilst he was undertaking his University English Bridging Course, but he did not pay much attention to them at that stage. However, he soon began to suffer from frequent abdominal pains and other symptoms such as sleepiness and lethargy throughout the day. Before the end of 2015 he applicant’s symptoms came to include vomiting. It was, he said, his declining health that convinced him to seek advice regarding his enrolment in the Bachelor of Information Technology course. An education agent, whose name the applicant could not remember, recommended that he undertake a less taxing course. As a result, the applicant enrolled in a Diploma of Management course, as mentioned above. The Diploma of Management was the last course that the applicant was able to complete. On 1 January 2016 the applicant presented at the Armadale Hospital emergency department, as he was unable to see his general practitioner. He was then taken by ambulance to Royal Perth Hospital, where he was put onto dialysis for the first time. The applicant was diagnosed as in end stage renal failure, and thereafter spent considerable time in hospital on dialysis.