LE (Migration) - [2019] AATA 2556

LE (Migration) [2019] AATA 2556 (10 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr VAN PHAT LE
CASE NUMBER:  1711734
HOME AFFAIRS REFERENCE(S):           BCC2017/1292188
MEMBER:Melissa McAdam
DATE:10 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 10 July 2019 at 1:38pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – ceased to be enrolled in a Higher Education Sector course – consideration of discretion – unsatisfactory attendance record – lack of commitment and ability to complete studies in Australia – Education Agent’s advice and assistance – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

CASES
Ibrahim v MHA [2019] FCAFC 89
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 29 May 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 applicant was represented in relation to the review by his registered migration agent.
The delegate cancelled the visa under s.116(1)(b) on the basis that he was satisfied the applicant had not complied with a condition of the visa. That condition was Condition 8516 – 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.
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’s Student visa was granted on 7 March 2016, with an expiry date of 15 March 2020.
NOICC
On 18 May 2017 the delegate sent a Notice of Intention to Consider Cancellation of the applicant’s Student visa (NOICC), under s.116 of the Act. In the notice the delegate set out Criteria 573.231 and 573.223 (1A)
573.231
If subclause 573.223(1A) does not apply:
(a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
(b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:
(i) made under regulation 1.40A; and
(ii) in force at the time the application was made.
eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:
(a) the applicant is enrolled in a principal course of study for the award of:
(i) a bachelor’s degree; or
(ii) a masters degree by coursework;
(b) the principal course of study is provided by an eligible education provider;
(c) if the applicant proposes…

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 LE (Migration)

Details

AGLC: LE (Migration) [2019] AATA 2556
Case: [2019] AATA 2556
Decision Date: 10 July 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (Cth) considered an appeal by an applicant against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute arose from the applicant's failure to maintain enrolment in a higher education course, which led to the cancellation of his visa by the Department.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was established, specifically whether the applicant had failed to comply with a condition of his visa by not continuing to satisfy the primary criteria for its grant, which included maintaining enrolment. If the ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to set aside the cancellation decision, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation was established because the applicant had ceased to be enrolled in a higher education course, thereby failing to meet the requirements of condition 8516 of his visa. In considering the exercise of discretion, the Tribunal had regard to the applicant's history of study in Australia, noting an unsatisfactory attendance record and a low level of engagement with his studies. Despite the applicant's stated desire to complete his studies to improve career prospects and avoid disappointing his parents, the Tribunal found that he had demonstrated limited commitment and ability to complete higher education courses in Australia. The Tribunal also noted that the applicant struggled to recall details of his courses and subjects, which did not support his claim of a compelling need to remain in Australia for study. The Tribunal concluded that these factors did not weigh against the exercise of its discretion to cancel the visa.

The Tribunal affirmed the decision to cancel the applicant'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

On 8 July 2019 the applicant submitted the following written information to the Tribunal:- A statement of results from the University of Newcastle for the Applicant’s Elementary level English course. - Correspondence between the Applicant and representatives at the University of Newcastle relating to the decision to cancel the Applicant’s CoE on grounds of unsatisfactory attendance.- A Confirmation of Enrolment from AHIC for a Diploma of Business. - A Letter of Offer from AHIC for a Certificate IV in Business and a Diploma of Business. - A Statement of Attainment from Institute X for the Applicant’s Diploma of Leadership and Management. - A submission by the applicant’s Agent stating that, although the grounds for cancellation may have existed, the Tribunal should exercise its discretion to set aside the visa cancellation because the evidence demonstrates the Applicant’s genuine intentions and desire to study in Australia.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?s.116(1)(b) - non-compliance with conditions 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 the visa. In this instance condition 8516 is attached to the applicant’s visa. 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 applicant to be enrolled, it has been held that 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, 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. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 16/003. 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. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 14/015.

Decision

Reasons for decision

On 25 May 2017 the applicant wrote to the Delegate stating that he had been notified by the University of Newcastle that his enrolment in a Bachelor of Business had been cancelled. He appealed and was frustrated by the appeal process. In January he applied for a Bachelor of Business at another institution. He needed a Certificate IV in business to be eligible to register for the course. He is currently studying at the institution to complete the Certificate IV so he can be eligible for enrolment in the Bachelor of Business. He attached a Confirmation of Enrolment (CoE) from Australian Harvard International College for a Certificate IV in Business, commencing 6 February 2017, with end date 16 July 2017.Delegate’s Decision On 29 May 2017 the delegate cancelled the applicant’s visa. The delegate referred to information that the applicant’s enrolment in a Bachelor of Business was cancelled on 19 December 2016, and the applicant had not held enrolment in a higher course of study since that date.Pre-Hearing Submission On 11 June 2019 the applicant’s Agent provided a written submission to the Tribunal containing the following:-Submissions by the Agent that§aspects of the reasons for the applicant’s lack of study and failure to remain enrolled for the relevant periods were within his control but there were also circumstances and situations beyond his control. §the Tribunal should exercise its discretion to set aside the decision to cancel the applicant’s visa.§After arriving in Australia the applicant first undertook a 30-week course of study in English at the university. He found himself struggling with his studies, including failing his intermediate level English studies and subsequently discovering that his CoE had been cancelled for lack of attendance. §The applicant sought advice from an education agent, whom he instructed to speak on his behalf in correspondence with the University of Newcastle to revert the cancellation of his CoE. Instead the agent advised the applicant to enrol at a different institution, the Australian Institute of Higher Education (AIHE). The AIHE advised the applicant he could not study there without a Cert IV in Business.§The agent arranged for the applicant to enrol in a Cert IV in Business at AHIC. The applicant attended classes for this course and studied this course as required. Unfortunately, his Subclass 573 visa was cancelled and his CoE at AHIC was then cancelled.§The applicant was then advised to enrol and study a Diploma of Leadership and Management at Institute X, which he did in 2018. In the applicant’s opinion, Institute X had no concern for the quality of their courses or teaching, so the applicant decided to stop studying at Institute X and await a decision on his visa. §The applicant desperately wishes to continue his studies and study a course in Business or Business Management. However the institutions that provide quality courses and teaching require students to hold a valid visa for such study, whereas institutes like Institute X, which do not require a visa, provide very poor education and low-quality courses.§At the time that his problems with study arose, he sought advice from an education agent in Australia and entrusted the entire process and actions involved to the education agent.§The applicant realised his mistakes in not maintaining a better attendance and hoped that he would be afforded a second chance to amend his ways. However, the agent’s advice was that the applicant ought to enrol at other institutions. As the applicant trusted the agents at the time, he agreed and believed that they would be able to find a place for him in the appropriate courses for his goals.§However, the applicant eventually discovered that the agent had only referred him to another institution because he would be gaining a commission from his referral to the institution, and the actual result was that the education agents allowed his University of Newcastle enrolment to lapse without any correspondence. Ultimately, this meant that the applicant was enrolled in a Cert IV that was not appropriate for meeting the conditions of his visa, which led to the current visa cancellation.§The applicant’s purpose for entering Australia has always been to study. He had numerous times sought advice and attempted to find a course of study that was suitable for his education goals in line with the advice that he had received from the education agent. However, through actions and consequences that were not in his control, he was left unable to study a suitable course and, even now, he has only been able to enrol in a course that is not sufficient for his study goals.§Even after his visa has been cancelled and especially after he realised the sub-optimal advice that he had received from the education agent, the applicant continued to take steps to enrol in relevant courses and continue his studies in Australia. §Aside from the non-compliance with condition 8516,the applicant has a history of compliance with his visa conditions and good behaviour and conduct towards the Department.-Enrolment form to the Australian Institute of Higher Education for a Bachelor of Business, dated 20 May 2017. -Confirmation of Enrolment to the Australian Harbour International College for a Certificate IV in Business, dated 17 January 2017. -Academic Transcript for the Certificate IV in Business undertaken by the applicant in 2017. The record shows ‘Not Yet Competent’ for two subjects, ‘Competent’ for three subjects, and ‘Enrolled’ for five subjects. -Letter of Offer from the Institute X of Business and Technology for a Diploma of Leadership and Management, dated 13 October 2017. Tribunal Hearing

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 applicant’s travel and stay in Australia, whether he has a compelling need to travel to or remain in Australia The applicant came to Australia to study. He commenced study but his enrolment was cancelled after several months due to his unsatisfactory attendance record. The applicant has undertaken brief periods of other study over the two and a half years he has remained in Australia. He has passed several subjects and failed other subjects. On his evidence he did not complete the courses he enrolled in during this period. The Tribunal considers that the applicant has demonstrated only a low level of engagement in his studies in Australia. The applicant has expressed a need to remain in Australia in order to complete studies and obtain a qualification, so as to improve his career prospects in Vietnam, and not disappoint his parents or shame himself. The Tribunal accepts that the applicant believes his employment prospects in Vietnam will be improved by gaining an education qualification in Australia, and that his parents will be very disappointed and he will be ashamed if he does not successfully do this. As put to the applicant he was able to successfully complete a university level course in Vietnam but he has struggled to attend courses and pass subjects, and even to comprehend the nature of the courses he has enrolled in, while in Australia. He has withdrawn from his latest course on the claimed basis it was poor quality, despite his past struggles to pass simple subjects and despite the benefits that would be gained by showing that he can successfully complete a course of education. The applicant cannot accurately remember or describe the courses he has enrolled in and he cannot remember or name the subjects or classes he claims to have attended. The Tribunal considers these matters do not support the applicant’s claim to need to remain in Australia to complete higher education here. The Tribunal does not accept that the applicant genuinely intends to resume and complete his studies in a higher degree in Australia. In the Tribunal’s view the applicant has demonstrated little commitment to, and ability for, study and completing higher education courses here While the Tribunal accepts the applicant has a personal wish to remain in Australia it does not consider his need to do so, compelling. The Tribunal does not view these factors as weighing against the Tribunal’s exercise of its discretion to cancel the applicant’s visaThe extent of compliance with visa conditions