Khan (Migration) - [2020] AATA 5662

Khan (Migration) [2020] AATA 5662 (16 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Shahbaz Khan
CASE NUMBER:  1935607
HOME AFFAIRS REFERENCE(S):          BCC2019/3388181
MEMBER:Frank Russo
DATE:16 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 16 December 2020 at 11:40am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – genuine student – study history – significant lack of academic progress – repeatedly obtaining new enrolments – consistent failure to participate in courses – lacked a logical and coherent study path – non-disclosure certificate – anonymous allegations made to the Department – working for over 80 hours a week – consideration of discretion – purpose of visa not fulfilled – technically maintained enrolment requirements – no meaningful progress towards achieving a qualification – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 375A
Migration Regulations 1994 (Cth), r 2.43
CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 16 December 2019 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 (the Act).
The delegate cancelled the visa under s.116(1)(fa)(i) of the Act on the basis that the applicant is not, or is likely not to be, a genuine student. 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 is a 26-year-old national of Pakistan.
The applicant appeared before the Tribunal on 8 July 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
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)(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.
In addition to the application form and copy of the delegate’s reasons for decision, the applicant provided the Tribunal with a number of additional documents including:
a.A completed ‘Request for Student Visa Information’ form, dated 19 June 2020;
b.Letter from Aspen College, dated 30 June 2020, regarding confirmation of enrolment in Certificate III in Light Vehicle Mechanical Technology;
c.Membership certificate of Mas International Trading to the Karachi Chamber of Commerce & Industry;
d.Submissions from the applicant’s agent, sent on 29 June 2020 (attaching submission dated 23 June 2020),…

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 Khan (Migration)

Details

AGLC: Khan (Migration) [2020] AATA 5662
Case: [2020] AATA 5662
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision to cancel the visa of an applicant, Mr. Khan. The dispute centred on whether the grounds for cancellation under the Migration Act 1958 (Cth) were met, and if so, whether the cancellation of his visa was warranted.

The Tribunal was required to determine if the applicant was a "genuine student" for the purposes of section 116(1)(fa)(i) of the Migration Act. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the applicant's visa, taking into account all relevant circumstances, including government policy and the applicant's personal situation.

The Tribunal found that the ground for cancellation under s.116(1)(fa)(i) was made out, concluding that the applicant was likely not a genuine student. This conclusion was based on the applicant's lack of a clear educational plan, his shifting reasons for being in Australia, and his pursuit of qualifications that did not appear to align with his stated career aspirations. The Tribunal noted that the applicant's stated intention to study "Automotive" and his completion of a Certificate III in Security Operations without working in that field, coupled with his desire to work in his family business or start his own, undermined the genuineness of his student visa. The Tribunal considered this established ground for cancellation to be a significant factor that fundamentally undermined the purpose of his stay in Australia.

Given that the ground for cancellation was established and was found to fundamentally undermine the purpose of the applicant's stay, the Tribunal affirmed the decision to cancel his 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)(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. In addition to the application form and copy of the delegate’s reasons for decision, the applicant provided the Tribunal with a number of additional documents including:a.A completed ‘Request for Student Visa Information’ form, dated 19 June 2020;b.Letter from Aspen College, dated 30 June 2020, regarding confirmation of enrolment in Certificate III in Light Vehicle Mechanical Technology;c.Membership certificate of Mas International Trading to the Karachi Chamber of Commerce & Industry;d.Submissions from the applicant’s agent, sent on 29 June 2020 (attaching submission dated 23 June 2020), together with a number of attachments, including a letter of intent from the applicant provided to the Department in response to the Notice of Intention to Consider Cancellation (NOICC) of the visa, transcript for the Diploma of Leadership and Management from George Brown College, completion letter from Salford College for the English Preparation for Academic Studies Program, Certificate III in Security Operations issued by Elite Training Institute, Statement of results for Bachelor of Community Services, dated 12 November 2019, and another copy of membership certificate for Karachi Chamber of Commerce & Industry;e.Email submission from applicant’s agent, dated 8 July 2020;f.Submission from the applicant’s agent, provided on 27 July 2020, together with a number of attachments, including a letter from Mas International Trading, handwritten medical notes from Ibn-e-seena Hospital Complex dated 5 August 2016 and 8 September 2017, and from Dr (Capt) Abid Hussain on 14 July 2018, statement of attainment from Aspen College, dated 24 July 2020, Confirmations of Enrolment (CoE) for the Graduate Diploma of Management (Learning) at Alpha College and a carsales.com.au purchase history;g.On 28 October 2020, the applicant’s agent provided a further written submission in response to a copy of a non-disclosure certificate issued by the Department under s.375A of the Act and information put by the Tribunal to the applicant using the procedure set out in s.359A of the Act. The applicant’s agent subsequently provided further emails on 5 November and 9 November 2020, the latter email also attaching two bank statements and a land sales agreement. The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.Does the ground for cancellation exist?s.116(1)(fa) - not a genuine student

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) of the Act 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 told the Tribunal that his reason for travelling to Australia was to get an education, however he gave little evidence of a clear plan or focus on his studies. He told the Tribunal that he hadn’t made up his mind before coming to Australia, however one of his ‘family cousins’ lives in Australia, and his father spoke to him because, as claimed by the applicant, the education is not good in Pakistan. He stated that he came to Australia when he was 22 and he was not focused on anything. He stated that he has no other reasons for staying in Australia, that he loves his mother and does not want to be so far from his parents. He stated that his parents have big hopes for him. When questioned about his plans if the visa is not cancelled, the applicant stated that he was studying ‘Automotive’ at the time (he was enrolled in the Certificate III in Light Vehicle Mechanical Technology), and that he will get some experience and then go back to Pakistan to start his own business. When questioned about not enrolling again in a Bachelor degree course, he stated that if he wants to obtain a degree he can get one from Pakistan, and that he is more interested in studies in the Automotive field and believes he can make a professional career out of it. The applicant stated that he was working as a casual Uber driver and stated that he only does this work when he gets time, that he does not do it constantly or consider it a permanent job. The Tribunal questioned the applicant about the Certificate III in Security Operations which he completed in May 2019 and whether he has worked in security. The applicant stated that he had not. He stated that it is hard to start a business in Pakistan and that this will help. When questioned how this was relevant to his proposed plans, the applicant stated that some friends of his did this course and more certificates and qualifications are good for him. He stated however that he is not a fan of security jobs and he has in mind working for the family business and starting his own business. In this case, the ground for cancellation has been made out on the basis that the applicant has been found likely not to be a genuine student. The established ground for cancellation directly and fundamentally undermines the purpose of the applicant’s stay in Australia. This is a significant factor that weighs in favour of cancelling the applicant’s visa.