Jamshaid (Migration) - [2020] AATA 1695

Jamshaid (Migration) [2020] AATA 1695 (3 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Junaid Jamshaid
CASE NUMBER:  1901683
HOME AFFAIRS REFERENCE(S):          BCC2018/4205257
MEMBER:Wendy Banfield
DATE:3 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 03 March 2020 at 2:23pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – condition to maintain enrolment – enrolment cancelled for non-payment of fees – enrolment in lower-level course and intention to progress to original level – father’s death and wife’s mental health – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, cl 573.231, Schedule 8, condition 8516
CASE
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 22 January 2019 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 did not comply with the conditions of the Student visa, specifically condition 8516. The applicant had been granted the Student visa in order to study a Bachelor of Business but his enrolment ceased on 21 December 2016. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
Background
The applicant is a citizen of Pakistan and is currently 27 years old. He came to Australia in 2016 to undertake higher education and specifically a Bachelor of Accounting. The applicant began the degree programme but ceased studying the course the same year. He enrolled in a Diploma of Accounting instead which was a breach of the conditions of his Student visa.
The applicant appeared before the Tribunal on 24 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Gloria Santillena.
The hearing
The applicant advised he first came to Australia on 28 May 2016 to study a Bachelor of Accounting. He said he had previously obtained a degree in fine arts in his home country. According to the applicant’s evidence, prior to his arrival in Australia his father passed away. The applicant submitted a death certificate in the name of “Jamshaid Butt” with a date of death listed as 1 April 2016. The applicant advised his father’s death led to a change in circumstances. He said his first trimester of study has been paid for but after his father’s death he had to study and take care of the family in Pakistan. He could not pay the fees to continue studying a degree and his Confirmation of Enrolment (CoE) was cancelled. The Tribunal asked the applicant why he still travelled to Australia given his father’s recent passing and…

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 Jamshaid (Migration)

Details

AGLC: Jamshaid (Migration) [2020] AATA 1695
Case: [2020] AATA 1695
Decision Date: 3 March 2020

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Jamshaid against the cancellation of his Subclass 573 Higher Education Sector visa. The dispute arose because Mr. Jamshaid's enrolment in his Bachelor of Business course was cancelled due to non-payment of fees, leading to his subsequent enrolment in lower-level Diploma courses. The decision under review was made by the Tribunal, presided over by Member Wendy Banfield.

The primary legal issue before the Tribunal was whether the ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if Mr. Jamshaid had failed to comply with a condition of his visa, which required him to maintain enrolment in a course that met the criteria for his visa subclass. The Tribunal also considered whether Mr. Jamshaid had a compelling need to remain in Australia and the degree of hardship that might be caused by the cancellation.

The Tribunal reasoned that Mr. Jamshaid had indeed failed to comply with his visa condition by not maintaining enrolment in a higher education course, as his Bachelor of Business enrolment was cancelled for non-payment of fees and he subsequently enrolled in Diploma courses outside the higher education sector. While acknowledging the applicant's stated reasons for wishing to remain in Australia, including his marriage and his wife's alleged mental health issues, the Tribunal found these claims lacked independent evidence and did not constitute a compelling need to stay. Although the Tribunal accepted that some hardship would be caused by the cancellation, it concluded that the fundamental breach of the visa conditions outweighed these considerations.

Consequently, the Tribunal affirmed the decision to cancel Mr. Jamshaid's Subclass 573 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 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)(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 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 met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type 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. In his evidence at the Tribunal hearing the applicant conceded his enrolment in a Bachelor of Business had been cancelled after the first trimester of the course because he was unable to pay the fees required to continue. Thereafter the applicant was enrolled in Diploma courses in Accounting and Business that were not in the higher education sector. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.· the 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

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.Wendy BanfieldMember

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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.· the 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 The applicant arrived in Australia to study a Bachelor degree and had commenced the course before discontinuing. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant advised he had married eight months ago and wants to stay in Australia with his wife. He said his wife suffers from panic attacks and needs his support. The applicant said he would still like to study if there is an opportunity to do so however, he wants to apply for a Partner visa. The applicant’ partner Ms Santillena confirmed she has mental health issues and the applicant supports and assists her. No independent evidence of a diagnosed health condition concerning Ms Santillena was provided and the Tribunal is unable to place weight on this claim. The Tribunal finds that while the applicant may wish to remain in Australia, he had not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia. · the extent of compliance with visa conditions There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a Student visa and weighs against the applicant in this case.· degree of hardship that may be caused (financial, psychological, emotional or other hardship) During the hearing the applicant claimed he, his wife and his family would suffer hardship if his visa is cancelled. According to his evidence, the applicant’s had planned to complete a degree and work hard to support his family. The applicant gave evidence about the difficulties facing international students which include paying study fees and meeting the timeframes required for payment. The applicant did not elaborate or provide further details but the Tribunal accepts there will be a degree of hardship caused by cancellation of the Student visa and gives some weight in his favour in this regard.