Italiya (Migration) - [2019] AATA 6126

Italiya (Migration) [2019] AATA 6126 (15 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Vimal Italiya
Ms Bhumi Jitendrakumar Savani

CASE NUMBER:  1809554
HOMA AFFAIRS REFERENCE:               BCC2017/4833347
MEMBER:Joseph Lindsay
DATE AND TIME OF
ORAL DECISION AND REASONS:         15 August 2019 at 2:37pm
DATE OF WRITTEN RECORD:                17 October 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 17 October 2019 at 4:07pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – genuine student – low or non-attendance and participation, non-completion of courses and course enrolment cancelled – discretion to cancel visa – factors for and against cancellation – unhappy arranged marriage with wife remaining in home country ended in divorce – mental health – inadequate medical documentation – no documentation of contact with course provider – no attempt to resume studies – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(fa)(i), (1A), 119, 140, 359
Migration Regulations 1994 (Cth), r 2.43(1C), (1D)
CASE
MIMA v Hou [2002] FCA 574
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 4 April 2018 made by a delegated decision maker under Section s116 (General Power) of the Migration Act 1958 (the Act) to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(fa)(i) of the Act.
At the hearing on 15 August 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons. This written record is not a verbatim reflection of the exact words the Tribunal used in the hearing. However, this written record accurately reflects the Tribunal’s reasons for its decision.
Mr Vimal Italiya attended the hearing before the Tribunal on 15 August 2019, however Ms Bhumi Jitendrakumar Savani did not attend the hearing.
The applicant spoke to the Tribunal in English and did not require the use of an interpreter.
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)(fa)(i). 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)(fa)(i) if the Minister or the Tribunal 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, is engaging, or…

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 Italiya (Migration)

Details

AGLC: Italiya (Migration) [2019] AATA 6126
Case: [2019] AATA 6126
Decision Date: 15 August 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Italiya, who sought review of the cancellation of his Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The dispute arose from Mr. Italiya's failure to maintain satisfactory course attendance and progress, leading to the cancellation of his visa. The AAT was required to determine whether, in the exercise of its discretion, the visa cancellation should be affirmed, considering various factors presented by Mr. Italiya and departmental guidelines.

The legal issues before the Tribunal included whether Mr. Italiya had complied with his visa conditions, and if not, whether the discretion to cancel his visa should be exercised. The Tribunal had to weigh factors in favour of and against cancellation, including Mr. Italiya's personal circumstances, such as an unhappy arranged marriage that ended in divorce, mental health issues including a diagnosis of schizophrenia, depression, and anxiety, and the potential hardship to himself and his family if the visa were cancelled. The Tribunal also considered the adequacy of medical documentation provided and Mr. Italiya's engagement with his course provider and the Department.

The Tribunal found that Mr. Italiya had not complied with his visa conditions due to low attendance and non-completion of courses. While acknowledging factors in his favour, such as the initial purpose of study, potential hardship, and his personal health struggles, the Tribunal placed significant weight against him due to his failure to demonstrate sufficient steps to resume his studies or adequately inform his course provider and the Department of his circumstances. The Tribunal found that the grounds for cancellation were not beyond his control and that the circumstances favouring cancellation outweighed those against it.

Ultimately, the Tribunal affirmed the decision to cancel Mr. Italiya's student visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In respect to the discretion as to whether or not to cancel the applicant’s student visa, the Tribunal made the following findings: -The Tribunal accepted that the purpose of the applicant’s travel to and stay in Australia was to study and the Tribunal gave this some weight in his favour. -The Tribunal accepted that the applicant appeared to have complied with the other conditions of his visa and the Tribunal gave this some weight in his favour. -The Tribunal accepted that there may be some degree of hardship caused to the applicant and his family members if his student visa was cancelled. The Tribunal accepted that that the applicant’s father borrowed money and sold property to help the applicant in his studies and his parents have limited financial means to assist him. The Tribunal accepted that the applicant did not know how we was going to face his family on his return to India. Accordingly the Tribunal accepted that there may be some degree of hardship caused to the applicant and his family members if his student visa was cancelled and the Tribunal gave this some weight in his favour. -In respect to the circumstances in which the ground for the applicant’s student visa cancellation arose, the Tribunal accepted his submissions where he indicated he came to Australia in an arranged marriage, but that it was an unhappy marriage that ended in mutually agreed divorce earlier this year. The Tribunal accepted that the applicant’s now ex-wife, who was also a dependent on his student visa, never came to Australia. The Tribunal accepted that the effect of the disharmonious situation adversely impacted on the applicant. The Tribunal accepted that when the applicant went back to India in 2017 he was informed that he had a diagnosis of schizophrenia and depression and anxiety for which he obtained a number of different medications from India but now he had received advice that he was better and he had stopped taking medication. Accordingly the Tribunal give the applicant some weight in his favour in this respect. -The Tribunal accepted that there was a s.376 certificate on the applicant’s file that the Tribunal decided was valid but also decided the Tribunal would not place any weight on the information covered by the certificate because the information was from an anonymous person that the Tribunal had no way of testing. The Tribunal indicated to the applicant that the anonymous tip off indicated, in summary, the applicant was not a genuine student. Despite informing the applicant that the Tribunal would not place any weight on this information, the applicant indicated to the Tribunal that the tip off was from his ex-wife’s uncle who he indicated was trying to blackmail him. Accordingly the Tribunal placed no weight on the information subject to the certificate.-When the Tribunal asked the applicant if he had contacted his course provider or the department in an attempt to bring his issues to their attention and to address his situation, the applicant indicated that he did but that he did not have any documentation at the hearing in respect to such contact. Accordingly the Tribunal placed low weight on these facts in the applicant’s favour.-However, despite these circumstances the Tribunal was not satisfied that the applicant took sufficient steps to resume his studies and complete his education despite having a more than ample opportunity to do so. Despite not undertaking any further study since 25 November 2016, the applicant did not seek assistance for his health issues until his return to India in 2017. Despite obtaining that assistance, the applicant never resumed his studies and when he received the NOICC on 8 March 2018, he was not registered or studying in a registered course of study. This is all against a background of events that the applicant agreed were correct, including that a) of the time for which he held his student visa, he had only actively partaken in his studies for four (4) months - that is, for 76.5% of the time he held his student visa he had not been studying; b) the applicant did not submit any assessment work or attend exams therefore resulting in zero grade results; c) his non-attendance was noted by his Lecturers; d) despite his enrolment in Semester 2, he failed all 16 units and he did not obtain enrolment in 2017. Accordingly for these reasons the Tribunal placed heavy weight on these facts against the applicant. -The applicant came to Australia in 2016 on a higher education student visa to study higher education and he did not adequately progress his studies and the Tribunal did not accept that he took reasonable steps in relation to his course provider or the department to notify them of his circumstances or of his actions and to make reasonable attempts to complete his studies. In all the circumstances as discussed, the Tribunal did not accept that the circumstances in which the ground for cancelling the applicant’s student visa were beyond his control.-The Tribunal had no information in regard to the applicant’s past and present behaviour towards the Department. Accordingly, the Tribunal give the applicant no weight in respect to this factor.-The Tribunal accepted that if the applicant’s student visa was cancelled his now ex-wife’s visa would also be cancelled under s.140 of the Act but, given she never actually came to Australia and the applicant was now divorced, the Tribunal gave this no weight in the applicant’s favour. -The Tribunal accepted that there were legal consequences as discussed to the applicant if his student visa was cancelled. The Tribunal accepted that the applicant would become an unlawful non-citizen and he may be liable to detention and removal from Australia if he did not voluntarily depart. The Tribunal accepted the applicant may be subject to s48 of the Act that would limit his options of applying for further visas in Australia. The Tribunal accepted that the applicant would be subject to Public Interest Criterion 4013 that means he may not be granted a temporary visa for three years from the date of the decision. In respect to these legal consequences to the applicant, The Tribunal gave low weight to the consideration for not cancelling the student visa. -The Tribunal accepted there was no indication that any international obligations would be breached as a result of cancelling the applicant’s student visa. -The Tribunal accepted the applicant indicated there were no other relevant factors as to why his student visa should not be cancelled. -After careful consideration of the information before the Tribunal, the Tribunal did not accept that the circumstances of the applicant’s visa cancelation were beyond his control and the Tribunal was satisfied that there was a ground for cancelling his student visa. The Tribunal was satisfied that the circumstances in favour of cancelling the applicant’s student visa outweigh the circumstances for not cancelling his student visa. DECISION

Ratio Decidendi

Legal Principle Established

The Tribunal then considered the discretionary factors. Consideration of the discretion to cancel the visa Having found that the applicant has not complied with a condition of the visa, 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 asked the applicant whether the information he provided to the delegate in the NOICC was still correct, and he agreed the information was still correct. The Tribunal noted that the applicant had not provided very much information to the delegate in his response, to which he agreed. The Tribunal put to the applicant that he had said, in summary, that he was sick and his wife was sick, to which he agreed. The Tribunal asked the applicant if he wanted to provide any further detail. In response, the applicant indicated he got married in 2015, and he came to Australia in 2016. He indicated his then wife’s parents wanted to send her to Australia. He indicated he could not afford to bring her to Australia. He indicated that a disagreement occurred where his then wife’s parents wanted him to bring his then wife to Australia. He indicated that the marriage was an arranged marriage. He indicated that he was living in Perth at the time, but that the marriage became an unhappy marriage. He indicated that, because of the unhappy marriage, he got depressed and got anxiety. He indicated that he could not focus. He indicated that she told him she did not want to be with him. He indicated that he felt “completely broken.” He said he spoke to his parents about it. He indicated he returned to India and while he was there he took tablets to treat his depression. The Tribunal asked the applicant whether he contacted his course provider about his circumstances (unhappy marriage and getting sick). In response, the applicant indicated he did contact his course provider. The Tribunal asked the applicant whether he had any documents about his contact with the course provider, and he said ‘no.’ The Tribunal asked the applicant whether he contacted the Department about his concerns and issues and he said ‘yes.’ The Tribunal asked the applicant whether he had any documents about his contact with the Department, and he said ‘no.’ The Tribunal considered the documentation about the applicant’s claim he had been diagnosed with schizophrenia. The Tribunal put to the applicant that nowhere on the documentation did the person (who the applicant claimed treated him in India) say he was a doctor or that he was the applicant’s doctor. The Tribunal put to the applicant that the document indicated that the applicant had received a diagnosis of schizophrenia, and that he suffered depression and anxiety since 2016 that resulted in schizophrenia - “a significant mental illness that causes him to have an altered experience of reality.” The Tribunal put to the applicant that a diagnosis of schizophrenia was not an insignificant diagnosis to be given, and to that the only information about his diagnosis or treatment for schizophrenia was a single document with the deficiencies that had just been explained to him. The Tribunal put to the applicant that it was for these reasons that it may put low weight on the documentation. In response, the applicant said he could get more documents but he indicated that he did not have any further documents at the hearing.