Doal (Migration) - [2019] AATA 2398

Doal (Migration) [2019] AATA 2398 (16 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jaspinder Singh Doal
CASE NUMBER:  1620971
HOME AFFAIRS REFERENCE(S):           BCC2016/3054815
MEMBER:Justin Owen
DATE:16 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 16 April 2019 at 1:17pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (class TU) visa – Subclass 573 (Higher Education Sector) – breach of condition – no longer enrolled in a Bachelor or Master degree course – attempts to enrol with another education provider – not received formal notification allowing applicant to withdraw from principal course of study – failed to maintain enrolment in course of study – applicant did not obtain new CoE at higher education level – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 360, 362, 379
Migration Regulations 1994, Schedule 2, r 1.40A, cls 573.111, 573.112, 573.223(1A), 573.231
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 5 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
The applicant is a national of India born 12 November 1994. His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 4 April 2014 and was subject to condition 8516. On 28 October 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8516 of his visa, as he was no longer enrolled in a Bachelor or Master degree course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A. As he had not continued to be a person that would satisfy either subclauses 573.231 or 573.223(1A), the delegate considered that the applicant had not complied with condition 8516 of his visa. The applicant responded to the NOICC on 2 December 2016. On 5 December 2016 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8516 of his visa.
The delegate cancelled the visa on the basis that the applicant had not complied with the requirements of condition 8516 of 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.
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 8516 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of…

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 Doal (Migration)

Details

AGLC: Doal (Migration) [2019] AATA 2398
Case: [2019] AATA 2398
Decision Date: 16 April 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of an applicant whose Student (Temporary) (class TU) visa, Subclass 573 (Higher Education Sector), was cancelled. The dispute centred on whether the applicant had breached a condition of their visa, leading to the cancellation decision by the Department. The applicant sought a review of this cancellation decision by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8516 of Schedule 8 to the Migration Regulations 1994, which requires a student visa holder to maintain enrolment in a course of study. If a breach was established, the Tribunal then had to consider whether to affirm the delegate's decision to cancel the visa, exercising its discretion in doing so.

The Tribunal found that the applicant had failed to maintain enrolment in a principal course of study at the higher education level, as evidenced by records from the relevant system. While acknowledging the applicant's attempts to enrol with other education providers and in different courses, the Tribunal noted that these did not constitute a principal course of study at the higher education level as required by the visa conditions. Furthermore, the applicant had not obtained a new Certificate of Enrolment at the higher education level. The Tribunal considered the purpose of a student visa to be for study in Australia and concluded that the applicant had not been fulfilling this purpose.

After considering all the circumstances, including the applicant's submissions and the significance of the breach, the Tribunal affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector 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

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 8516 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled. On 9 December 2016 the Tribunal wrote to the applicant and advised it had received an application for a review of the delegate’s decision to cancel his Subclass 573 Higher Education Sector visa. On 13 February 2019 the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues in his case on 1 March 2019. On 21 February 2019 the applicant accepted the Tribunal’s invitation to hearing and notified the Tribunal he was now representing himself in the review. The applicant included a completed Form 956 and a Change of Contact Details form ending the appointment of his representative (T1, Folio.34-36). On 21 February 2019 the applicant made written submissions to the Tribunal and included a range of supporting evidence (T1, Folio.40-116). The Tribunal also noted from the applicant’s correspondence of 21 February 2019 he stated ’if I get a date extension, it will be of great help’ (T1, Folio.116). The Tribunal noted that the applicant was now residing in Melbourne whilst its scheduled hearing for 1 March 2019 was to be held in Sydney. On 25 February 2019 the Tribunal contacted the applicant and stated that rather than put him to the expense of travelling to Sydney to attend the hearing in person, the Tribunal was prepared to postpone the hearing until the Member was in Melbourne if the applicant so wished. The applicant agreed with the Tribunal’s offer to postpone the hearing and for it to be rescheduled in Melbourne in about a month’s time. On 25 February 2019 the Tribunal told the applicant over the telephone that the Tribunal would be sending a new hearing invitation in coming days. The applicant was told that the new hearing invitation would have the Melbourne Registry address to attend the hearing. Before ending the telephone call, the Tribunal reconfirmed the applicant’s email address to ensure it was accurate. There were no further questions from the applicant. On 15 March 2019 the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues in his case on 10 April 2019. The Tribunal sent a courtesy reminder of the hearing via SMS to the mobile telephone number the applicant provided for the applicant on 3 April 2019 and 9 April 2019. No response was received from the applicant to the Tribunal’s invitation. The invitation stated that if the applicant did not attend the scheduled hearing then the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

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.Justin OwenSenior Member

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1) 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 Having found that the applicant has not complied with a condition of the visa and the ground for cancellation exists, the Tribunal must consider whether the visa should be cancelled. 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 Tribunal has considered the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia. The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia. The primary decision record indicates that PRISMS evidence available to the Department indicated the applicant ceased to be enrolled in a principal course of study at the higher education level between 6 November 2014 and 17 November 2016. The Tribunal considers the breach of condition 8516 to be significant and that the applicant had not been fulfilling the purpose of his travel to and stay in Australia as a holder of a student visa. The Tribunal notes the applicant’s claim in his written correspondence of 21 February 2019 that he was a good student and only wanted to study at universities rather than other education providers. The Tribunal accepts that the applicant made significant attempts in 2014 and early 2015 to transfer his enrolment to another higher education provider. The Tribunal also notes from the applicant’s submissions he provided to it that the applicant enrolled at the Hibernia Institute in a Certificate IV of Business leading to Diploma then Advanced Diploma of Management in April 2015. (T1, Folio.87). There is no evidence before the Tribunal that the applicant ever successfully completed either the Diploma or the Advanced Diploma of Management. The Tribunal notes from the applicant’s submissions that he also enrolled in a Diploma of Business in 2016 at Group Colleges of Australia that was to lead into a Bachelor of Business (T1, Folio.86). The Tribunal gives some positive weight to the applicant for enrolling in courses of study but notes that none of these (the Bachelor course notwithstanding) were principal courses of a kind specified for his 573 Higher Education visa. The applicant Tribunal acknowledges that the applicant did enrol in Higher Education courses after his enrolment at UTS was cancelled – a Bachelor of Business but the Tribunal notes this only occurred after two years of non-enrolment and after receiving the NOICC from the Department. The Tribunal notes in his NOICC response he provided to the Tribunal that he states he wants to study not only just to justify his visa requirements but primarily to secure a good career and gain skills which will help his family get back on track. The Tribunal appreciates the applicant has enrolled in a number of courses but notes he has not on the evidence before it successfully completed any Higher Education courses in the five years since the grant of his visa.