Kandel (Migration) - [2020] AATA 1696

Kandel (Migration) [2020] AATA 1696 (2 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Suresh Kandel
CASE NUMBER:  1902080
HOME AFFAIRS REFERENCE(S):          BCC2018/4403754
MEMBER:Wendy Banfield
DATE:2 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 02 March 2020 at 4:55pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – condition to maintain enrolment – after completing diploma, applicant did not want to relocate in order to study for degree – applicant’s course results and doubt of ability to study higher education – enrolment in another diploma course in different subject area and intention to progress to degree level – 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 24 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 Information Technology but his enrolment ceased on 20 February 2017. 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 Nepal and is currently 30 years old. He came to Australia on 23 October 2014 for the purpose of studying a Diploma and Bachelor of Information Technology (IT). Since his arrival, the applicant has completed a Diploma and Advanced Diploma of IT and a Diploma of Leadership and Management. At the time of the hearing the applicant was enrolled in an Advanced Diploma of Leadership and Management.
The applicant appeared before the Tribunal on 25 February 2020 to give evidence and present arguments.
The hearing
The applicant confirmed he had travelled to Australia to study a Diploma course followed by a Bachelor degree at the University of Canberra (UC). He said after residing with a cousin in Sydney and completing a Diploma, he applied for a release from UC because he did not want to move. The applicant applied to study at Victoria University but advised that at the time he was not sufficiently prepared to take a Bachelor degree. Instead he enrolled in an Advanced Diploma. The applicant submitted he had been concerned he had not always passed his subjects and decided against further studies in IT.
The applicant then enrolled in a Diploma and Advanced Diploma of Leadership and Management. When asked whether he advised the Department or sought…

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: Kandel (Migration) [2020] AATA 1696
Case: [2020] AATA 1696
Decision Date: 2 March 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) Subclass 573 visa was cancelled. The dispute arose because the applicant, after completing a diploma, did not wish to relocate to study for a degree, and their course results and perceived ability to undertake higher education were questioned. The applicant had enrolled in another diploma course in a different subject area with the intention of progressing to a degree.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) existed, specifically whether the applicant had failed to comply with a condition of their visa. This condition, 8516, mandates that a visa holder must continue to satisfy the criteria for the grant of their visa, which includes maintaining enrolment in a course of study. The Tribunal also had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances.

The Tribunal reasoned that the applicant had breached condition 8516 by not maintaining enrolment in a course that met the requirements for their Subclass 573 visa. The applicant's concession that they cancelled their Bachelor of IT enrolment due to an unwillingness to relocate, and their subsequent enrolment in diploma courses rather than a higher education sector course, satisfied the ground for cancellation. In exercising its discretion, the Tribunal considered the applicant's original intention to study in Australia, their stated desire to complete degrees for opportunities in their home country, and their aspiration to join the Australian Army. However, the Tribunal found no compelling need for the applicant to remain in Australia. While acknowledging the hardship cancellation would cause, the Tribunal concluded that the fundamental breach of visa conditions, particularly the failure to maintain enrolment, weighed heavily against the applicant.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector visa, finding that on balance, the considerations weighed against the applicant and the issues encountered were not sufficient to warrant the visa not being cancelled.

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 IT had been cancelled as he did not want to relocate from Sydney to attend the University of Canberra. Thereafter the applicant undertook Diploma and Advanced Diploma courses rather than continue in the higher education sector as required. 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

The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled. DECISION 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 first arrived in Australia in 2014 and was enrolled in a Diploma course leading to a Bachelor degree. 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. The applicant was invited to make submissions regarding any compelling need to remain in Australia. In his written submission to the Department dated 24 December 2018 the applicant said he wanted to complete his current course and a degree which would help him with opportunities in his home country. During the hearing, the applicant submitted he wants to complete Bachelor and Master’s degrees. When asked about his career plans, the applicant said he would like to join the Australian Army but would need to be a citizen. He indicated he was hoping to stay in Australia but if not, he would have to return to Nepal. The Tribunal has considered the applicant’s evidence in writing and at the hearing. While he may wish to stay in Australia, the Tribunal finds he has 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) The Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant advised he has spent a lot of time and money in Australia and added that he would be affected emotionally as well as financially. 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. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.· circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control