Jamal-UD-Din (Migration) - [2020] AATA 3411

Jamal-UD-Din (Migration) [2020] AATA 3411 (1 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jamal-UD-Din
CASE NUMBER:  2002505
HOME AFFAIRS REFERENCE(S):          BCC2019/5230828
MEMBER:Vanessa Plain
DATE:1 July 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 01 July 2020 at 2:31pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a higher level course ceased – applicant obtained course medical deferment – applicant returned to his home country for treatment – new enrolment not obtained – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202
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 6 February 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course. 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 26 June 2020 to give evidence and present arguments.
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
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202(2)(a) 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.
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a full time registered course: 8202(2)(a)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
An examination of the Delegate’s file and the Tribunal’s file reveals that the applicant was granted a Student (Temporary) (class TU) (subclass 500) visa in November 2018. PRISMS indicated that he has finished two courses of study; General English and a Diploma of Leadership and Management. However, the principal course for which the applicant’s visa was granted, being a Masters of Business Administration, was cancelled on 29 November 2018.
The applicant received a Notice of Intention to Consider Cancellation (NOICC) of the visa on…

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.

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Details

AGLC: Jamal-UD-Din (Migration) [2020] AATA 3411
Case: [2020] AATA 3411
Decision Date: 1 July 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa (Subclass 500) held by the applicant. The dispute arose because the applicant had ceased enrolment in a higher-level course, leading to a potential breach of visa conditions. The decision was made by Member Vanessa Plain.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(a) of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a full-time registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had not complied with condition 8202(2)(a) as he was not enrolled in a registered course from 8 December 2018. However, in considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's circumstances, including a deferral of his course on compassionate and medical grounds, his return to his home country for treatment, and the subsequent difficulties in re-enrolling. Crucially, the Tribunal considered additional evidence submitted by the applicant, which was not available to the original decision-maker, including medical documents and correspondence with his education provider.

Ultimately, the Tribunal concluded that, on the totality of the evidence and considering the applicant's compelling 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 500 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 The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202(2)(a) 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.Did the applicant comply with Condition 8202? Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:·be enrolled in a full time registered course: 8202(2)(a)·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii). In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course. An examination of the Delegate’s file and the Tribunal’s file reveals that the applicant was granted a Student (Temporary) (class TU) (subclass 500) visa in November 2018. PRISMS indicated that he has finished two courses of study; General English and a Diploma of Leadership and Management. However, the principal course for which the applicant’s visa was granted, being a Masters of Business Administration, was cancelled on 29 November 2018. The applicant received a Notice of Intention to Consider Cancellation (NOICC) of the visa on or around 16 January 2020. The applicant responded in writing on 22 January 2020. The applicant did not clearly articulate whether he agreed that there were grounds for cancellation, but he provided that he obtained an approved deferment from his education provider until 7 December 2018 based upon medical grounds. At the hearing, the applicant candidly admitted that he was not enrolled in a registered course, but contended that he was not enrolled from 8 December 2018 onwards, due to having received a deferral from his course provider. The Tribunal has had regard to a letter from Universal Business School Sydney, dated 30 August 2018, which confirms that the applicant had been granted a deferral on compassionate grounds for the period 27 August 2018 to 7 December 2018. On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant was not enrolled in a registered course from 8 December 2018. Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2)(a).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 Procedural Instruction ‘General visa cancellation powers’.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelledDECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.Vanessa PlainMemberATTACHMENTMigration Regulations 1994…Schedule 88202(1) The holder must be enrolled in a full time course of study or training if the holder is:(a)a Defence student; or(b) a Foreign Affairs student; or(c) a secondary exchange student.(2) A holder not covered by subclause (1):(a) must be enrolled in a full time registered course; and(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:(a) is enrolled in a course at the Australian Qualifications Framework level 10; and(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.

Ratio Decidendi

Legal Principle Established

On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant was not enrolled in a registered course from 8 December 2018. Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2)(a).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 Procedural Instruction ‘General visa cancellation powers’. The applicant provided reasons in his response to the NOICC as to why his visa should not be cancelled. The reasons, as set out in the Delegate’s decision (verbatim) are as follows:·‘The visa holder deferred his course due to a medical condition and he went back to his home country to get treatment.’ ·‘He claimed that his approved deferment was until 7 December 2018 and he was supposed to return to his study on 29 January 2019, however, the enrolment was “discontinued from November 28th 2018 without being notified by my institution or sent out of any such happening through email or other means” [sic].’·‘The visa holder claimed that the relationship breakdown between him and his wife during this time further affected him mentally and physically.’ ·‘He stated that when he came back to Australia, “the college intake enrolment was over” [sic] and he has not had any contact from the education provider. ·‘The visa holder indicated that if he had known about his non-enrolment and “had been told about the consequences” he “would have devoted my every effort to saving it” [sic].’·‘If the visa is cancelled, he would return to his home country “without achievement of qualification” after paying “approximately $45k in fees” [sic]. The visa cancellation would also lead to his family’s disappointment and his embarrassment.’ ·‘He claimed that the education provider is reconsidering his “enrolment and compassionate circumstances” after he has submitted “all the explanation as supporting” [sic].’ ·‘The visa holder stated that he has always abided by the law and he has not done any harm to anyone. If he is given a chance, he would “fulfil the remaining part of the course and leave to my home country”.’ The applicant submitted a suite of documents to the Tribunal in support of his review hearing, which the Delegate did not have the benefit of at the time of the delegate’s decision, as follow:·Deferral letter of 30 August 2018, demonstrating course deferral between 27 August 2018 and 7 December 2018 for a Masters of Business Administration;·A suite of medical documents evidencing treatment for a serious medical condition, obtained in the applicant’s home country in late 2018 and early 2019;·MRI report from Akram Hospital;·Letter from Dr Amanullah;·A signed statement regarding the breakdown of the applicant’s marriage while seeking medical treatment in his home country in late 2018; and·Correspondence with the university seeking re-enrolment. Purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia