Javaid (Migration) - [2022] AATA 3481

Javaid (Migration) [2022] AATA 3481 (13 September 2022)
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DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hashim Javaid
REPRESENTATIVE:  Mr Ashutosh Sharma (MARN: 1682588)
CASE NUMBER:  2205478
HOME AFFAIRS REFERENCE(S):          BCC2021/2440268
MEMBER:Noelle Hossen
DATE:13 September 2022
PLACE OF DECISION:  Perth
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 13 September 2022 at 4:52pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – no courses completed – enrolment ceased – applicant changed to Vocational courses – family health issues – financial hardship – impact of the COVID19 pandemic – marriage breakdown – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 119, 140
Migration Regulations 1994, r 2.43
CASES
MIMA v Hou [2002] FCA 574
Wan v MIMA (2001) 107 FCR 133
STATEMENT OF DECISION AND REASONS
application for review

This is an application for review of a decision dated 8 April 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(fa)(i) on the basis that in the 24 months since the visa was granted the visa holder failed to complete a single course of study and had consistently poor attendance record. The visa holder did not hold a CoE in any registered course from 25 May 2021 to 16 January 2022. 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 9 June 2022 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing. The Tribunal heard oral evidence from the applicant’s friend Arslan Ejaz.
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) (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.
The evidence before the Tribunal and contained in the Delegate’s Decision can be briefly summarised chronologically as follows:
13/03/2020 Date that the Student Visa was granted for the applicant to study at Edith Cowan University a Diploma of Commerce to commence on the 19 February 2020 to 29 January 2021 followed by a Bachelor of Commerce to commence 22 February 2021 to 18 November 2022.
16/03/2020 Date 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 Javaid (Migration)

Details

AGLC: Javaid (Migration) [2022] AATA 3481
Case: [2022] AATA 3481
Decision Date: 13 September 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Javaid, who sought review of a decision to cancel his Student (Temporary) (Class TU) visa, subclass 500. The cancellation was based on the ground that Mr. Javaid was not a genuine student, having failed to complete any courses and ceasing enrolment in his initial studies. He had subsequently changed to vocational courses, citing family health issues, financial hardship, the impact of the COVID-19 pandemic, and a marriage breakdown as contributing factors.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(fa)(i) of the *Migration Act 1958* (Cth) was established, and if so, whether to exercise its discretion to cancel the visa. The specific legal issue was whether Mr. Javaid was a genuine student, given his history of non-completion of studies and his subsequent enrolment in vocational courses.

The Tribunal found that the ground for cancellation was established, as Mr. Javaid had not completed a registered course since his arrival and had previously had courses cancelled for unsatisfactory progress and non-commencement. However, the Tribunal then considered its discretion not to cancel the visa. It had regard to Mr. Javaid's circumstances, including his young age upon arrival and at the time of the hearing, his remorse, and his genuine efforts to complete his current course. The Tribunal also noted his expressed shame at his failures and his desire not to return home due to family disappointment. Factors weighing in favour of not cancelling the visa included his current efforts to study, his engagement with psychological counselling, and his assurances of future compliance with visa conditions. The Tribunal acknowledged the impact of his father's illness, family financial losses due to the pandemic, and his own marriage breakdown as contributing factors to his past difficulties.

The Tribunal was satisfied that the ground for cancellation existed but exercised its discretion not to cancel Mr. Javaid's visa. The decision under review was set aside.

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

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Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1) (fa)(i) 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 was granted a Student Visa to study a Diploma of Commerce and a Bachelor of Commerce. At the hearing the applicant did not provide evidence to the Tribunal that he had completed a registered course since his arrival. He did provide a summary of the hours that he had spent studying for his Certificate III that he commenced studying in January 2022. It is noted that he has received some credit for the units that he was competent in, presumably when he previously studied the Course. The Delegate noted that the applicant’s previous courses were cancelled for non-commencement of studies, unsatisfactory course progress and student notifying that he was ceasing the studies. The Tribunal acknowledges that the applicant is now trying his best to complete his Course. He pleaded with the Tribunal to allow him to remain in Australia to finish the Course as he admits that his purpose of coming to Australia has resulted in failure and he therefore does not wish to return to his home country as he is ashamed and knows that his family will be disappointed. The Tribunal takes into consideration that the applicant was only 19 years of age when he arrived in Australia and that he was only 21 years of age when he appeared at the hearing. The applicant has expressed remorse for his failures and is genuinely hoping to pass the course that he is presently studying. He has the assistance of his friend who gave evidence who is now living with him . He is also seeking counselling through his medical practitioner and a psychologist. The fact that he appears back on track in his studies and is genuinely attending to his psychological health is one of the reasons why the Tribunal weighs those facts in favour of not cancelling the Visa.The extent of compliance with visa conditions: The applicant is trying to comply with his visa conditions since January 2022. He assured the Tribunal that he would continue to study. He was genuinely remorseful that he had failed in his endeavours in Australia. He accepts that he was not diligent, but he impressed on the Tribunal that there were various factors that did not help the situation such as the fact that his father was ill and the covid pandemic resulted in financial loss for his family who wre unable to help him financially.