Khamatham (Migration) - [2024] AATA 4015

Khamatham (Migration) [2024] AATA 4015 (10 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Akhil Khamatham
REPRESENTATIVE:  Manmir Singh Bawa (MARN: 2117648)
CASE NUMBER:  2314162
HOME AFFAIRS REFERENCE(S):          BCC2023/2164355
MEMBER:Christine Kannis
DATE:10 October 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 10 October 2024 at 4:27pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in full-time registered course – enrolments cancelled because of unsatisfactory course progress and non-payment of fees – transition from classes to online study – family’s health and financial circumstances, and applicant’s mental health – new enrolment after receiving department’s notice of intention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359AA
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
CASES
Liu v MIMIA [2003] FCA 1170
Plaintiff M64/2015 v MIBP [2015] HCA 50
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 1 September 2023 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 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams on 1 October 2024 to give evidence and present arguments.
The applicant was represented in relation to the review.
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
Request for postponement of hearing
On 1 August 2024, the Tribunal sent the applicant an Invitation to attend a hearing on 1 October 2024. The Invitation included advice that if the applicant wished to seek to adjourn the hearing for a medical reason, he must provide a doctor’s certificate that states he is not able to attend the scheduled hearing. The Invitation further advised that if he cannot provide a medical certificate he must provide a convincing reason for this. He was advised that the Member will consider the request and advise of the outcome. The Invitation also advised that if he is seeking more time to present information after the hearing he should advise the Member at the hearing and provide strong reasons.
On 24 September 2024, the applicant requested that the hearing on 1 October 2024 be postponed and advised that he had been misguided by his previous legal representative and was in the process of finding a new representative which was taking some time as he…

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 Khamatham (Migration)

Details

AGLC: Khamatham (Migration) [2024] AATA 4015
Case: [2024] AATA 4015
Decision Date: 10 October 2024

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Khamatham against the cancellation of his Student (Temporary) (Class TU) visa, subclass 500. The Department of Home Affairs had initiated cancellation proceedings due to Mr. Khamatham's non-compliance with visa condition 8202(2)(a), specifically his failure to maintain enrolment in a registered course. This non-compliance arose from the cancellation of his previous course enrolments due to unsatisfactory academic progress and non-payment of fees.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether the Tribunal should exercise its discretion to cancel the visa. The Tribunal was required to consider the applicant's explanation for his non-compliance, which included the impact of the COVID-19 pandemic on his family's health and financial circumstances, his subsequent mental health struggles, and his need to provide financial support to his family. The Tribunal also had to assess the applicant's efforts to rectify his situation, including obtaining a new enrolment after receiving the notice of intention to cancel.

The Tribunal found that the ground for cancellation under s 116(1)(b) was established, as the applicant had ceased to be enrolled in a registered course. While this ground did not mandate cancellation, the Tribunal then considered whether to exercise its discretion. The Tribunal acknowledged the significant impact of visa cancellation but, after weighing all the circumstances, including the applicant's personal difficulties and his subsequent efforts to re-enrol, concluded that the visa should be cancelled. The Tribunal affirmed the decision to cancel Mr. Khamatham's 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

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Christine KannisMemberATTACHMENTMigration 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

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 to exercise its discretion to cancel the visa.Consideration of the discretion to cancel the visa 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, the representative and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. On 28 June 2023, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 11 August 2022 and had therefore failed to comply with condition 8202(2)(a) of his visa. Response to NOICC On 12 July 2023, the applicant responded to the NOICC and provided the following information via his previous migration agent:·The applicant has been dedicated to pursuing his academic goals but endured hurdles along the way. He has been able to pass numerous units but has been unable to complete his master’s degree. ·The applicant has suffered as a result of the impact of the COVID pandemic on his family back home. One of his parents became seriously ill and this affected the family business. The struggles of his family’s health and financial circumstances made him wrestle with fact that he wished to return home as well as his strong desire to continue his studies. This had a detrimental effect on his mental health and he became depressed and was unable to focus on his education. ·In addition to his debilitated mental health, the applicant needed to assist his family financially and this had a terrible impact on his education and this led to the cancellation of his CoE. These were circumstances beyond the control of the applicant’s and all he could do was deal with his health day by day whilst trying to be a strong moral and financial support to his family from afar. ·The applicant is now able to focus on his studies and has sorted out his financial issues and has a current CoE and has received 5 credit transfers from the previous transcripts already achieved in Australia. Therefore he only needs to study for just over a year to complete his Master of Project Management and Business. At the time of responding to the NOICC the applicant provided:· Victoria University Online Statement of Results as at 15 July 2020 showing the courses enrolled and grades achieved for the applicant in 2019 and 2020;· Victoria Institute of Technology Interim Academic Progress Report dated 2 September 2022 showing the courses enrolled and grades achieved/ withdrawn status for the applicant in 2021 and 2021;· CoE for Master of Project Management and Business created on 11 July 2023; and· Statement of Purpose made by the applicant in which he said:o He was keen to gain knowledge of business administration and management skills through his course to apply by starting his own business. He had a chance of going back to his country and apply his skills to his family business and settle down there but few circumstances avoided him to secure his Post graduation degree and progress in career. Mainly as a result of COVID breakdown, one of his parents had serious health issues that effected his family business. He was deeply depressed and couldn’t focus on his academics leaded to failing a few units. His situation also forced him to provide some support to his family at that point and had no other way. o His parents wanted him to go back and provide personal support but his time and effort invested to reach this point of his career would be an absolute waste.o He was always a good student in prior education and also at Australian institutions but his lack of focus lead to failure in submitting assignments on time.o He is happy to go back to his country and help his parents but his concern is about the time and money invested in achieving some academic progress till now. o He requests to stay to finish the rest of the course and secure his Post graduation degree before going back as that could help him progress in life and career and help establish his own firm back home.o He had a good character background in Australia and never involved in any crime. Evidence provided prior to hearing