Khan (Migration) - [2019] AATA 3468

Khan (Migration) [2019] AATA 3468 (8 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sulaiman Khan
CASE NUMBER:  1729710
HOME AFFAIRS REFERENCE(S):          BCC2017/2997874
MEMBER:Christine Kannis
DATE:8 March 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 08 March 2019 at 6:28am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – maintaining enrolment in a registered course – eligible higher degree student – applicant ceased studies – unsatisfactory course progress – evidence of ongoing medical conditions – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 573.223, 573.231; Schedule 8; Condition 8516; r 1.40
CASES
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 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
The issue in this case is whether the 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 on 11 February 2019 to give evidence and present arguments.
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
A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. 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?
On 5 February 2014 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8516 attached. Condition 8516 requires that the visa holder 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 a criterion requiring the visa holder to be enrolled, it has been held that this requires the visa holder to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.
In the present case the applicant was required to meet, among other criteria, subclause 573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994. The delegate’s decision stated the applicant met cl. 573.231 or cl.573.223(1A) on 5 February 2014.
Essentially, subclause 573.231 provides that, unless a person is an eligible higher degree student as set out in 573.223(1A), that person must be enrolled or the subject of a current offer of…

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) [2019] AATA 3468
Case: [2019] AATA 3468
Decision Date: 8 March 2019

CaseChat Overview and Summary

This matter concerned an appeal by the applicant against the cancellation of his Subclass 573 Higher Education Sector visa. The applicant had been granted the visa on 5 February 2014, which was subject to condition 8516, requiring him to maintain eligibility for the visa granted. The Department of Immigration and Border Protection had issued a Notice of Intention to Consider Cancellation (NOICC) on 11 October 2017, alleging a breach of this condition due to the cancellation of his enrolment in a registered course.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8516 of his visa. This required the Tribunal to determine if the applicant had ceased to meet the criteria for the grant of the visa, specifically concerning his enrolment in a principal course of study as stipulated by Schedule 2 to the Migration Regulations 1994. The Tribunal also had to consider whether, having found a ground for cancellation, it should exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant's enrolment in a Bachelor of Business course was cancelled on 3 February 2017 due to unsatisfactory course progress, as evidenced by information from the Provider Registration and International Student Management System (PRISMS). This cancellation meant the applicant no longer satisfied the primary criteria for his visa, thereby breaching condition 8516. While the applicant did not dispute the existence of this ground for cancellation, he requested that his visa not be cancelled, citing extenuating circumstances including ongoing medical conditions of depression and anxiety, a motor vehicle accident causing back pain, and the death of his grandfather. The Tribunal acknowledged these circumstances but, on balance, concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. 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? On 5 February 2014 the applicant was granted a visa in Subclass 573 Higher Education Sector with condition 8516 attached. Condition 8516 requires that the visa holder 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 a criterion requiring the visa holder to be enrolled, it has been held that this requires the visa holder to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679. In the present case the applicant was required to meet, among other criteria, subclause 573.231 or 573.223(1A) of Schedule 2 to the Migration Regulations 1994. The delegate’s decision stated the applicant met cl. 573.231 or cl.573.223(1A) on 5 February 2014. Essentially, subclause 573.231 provides that, unless a person is an eligible higher degree student as set out in 573.223(1A), that person must be enrolled or the subject of a current offer of enrolment in a principal course of a kind 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: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI14/015. 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 degree, Masters 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. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant’s enrolment in a Bachelor of Business was cancelled on 3 February 2017. The reason for cancellation was indicated to be “Unsatisfactory course progress”. The delegate found the applicant breached condition 8516 of the visa because he no longer satisfied the primary criteria as he ceased to be enrolled in a higher education course, that is, a course of study that was the principal course of a type specified for a Subclass 573 visa by the Minister in an instrument made under r.1.40A. On 11 October 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that he had failed to comply with condition 8516. A response was received on 23 October 2017. The applicant did not dispute the ground for cancellation existed but requested his visa not be cancelled due to extenuating circumstances.

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 Subclass 573 Higher Education Sector visa.Christine KannisMember

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 power to cancel the visa should be exercised.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’. In his response to the NOICC the applicant provided the following information: ·There were extenuating circumstances beyond his control. The only reason for not complying with visa condition 8516 was his ongoing medical condition of depression. He has been treated for depression since July 2014.·He was enrolled in four units in Semester one in 2014 and he achieved a High Distinction for one unit but was unable to sit the exams for the remaining units due to anxiety and depression. He hoped to feel better in the next semester and enrolled in two units commencing February 2015. ·In March 2015 he had a motor vehicle accident. He suffered extreme back pain which meant he could not sit in one place for longer hours. This affected his concentration and ability to sit for longer hours and to study. As a result he failed the units again. This was repeated in the third semester.·He tried reducing his unit load to one unit in the hope he could clear one unit but by that time he had lost confidence worsened by his anxiety and depression. He sought further treatment in the second semester of 2016. ·Due to his inability to pass the units because of his medical condition his CoE was cancelled in February 2017.·Adding to his mental/emotional instability was his grandfather’s demise in early 2017.·During this period he realised he needed to rethink his career options as his medical conditions were limiting his ability to pursue a career in Accounting. His back pain would not allow him to study any course which required extended study hours.·After discussing his options with his father he decided to join a course in Hospitality. His family owns a restaurant and this course would help him to join the family business. The Hospitality course required less time sitting in a classroom situation which helped alleviate his back pain. Therefore he decided to complete Certificate III,IV and Diploma of Hospitality. After completion of these courses he would gain relevant skills to work in the restaurant in the family owned hotel in Pakistan.·He was not aware that he was required to reapply for a new visa with his new CoE, however is now aware but still intends to complete a higher education course.·He also did not re-apply for a Vocational CoE because he always intended to complete higher education (a Bachelor degree) in his chosen career. After rethinking and rechoosing his career path, after completion of his Diploma of Hospitality he intended to study a Bachelor of Business to help him with his administration skills to use when operating his family business.·He wishes to remain in Australia to complete his studies in Diploma of Hospitality followed by a Bachelor of Business, to provide him with the relevant skillset and opportunity to work in the commercial kitchen within his family Hotel leading towards being in a position to exercise overall control of the business.