Lutchmiah (Migration) - [2024] AATA 517

Lutchmiah (Migration) [2024] AATA 517 (10 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Antish Lutchmiah
CASE NUMBER:  2217114
HOME AFFAIRS REFERENCE(S):          BCC2022/2198841
MEMBER:Christine Kannis
DATE:10 February 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 10 February 2024 at 9:29am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant failed to attend tribunal hearing – applicant was not enrolled in a registered course from 21 February 2020 – applicant did not respond to the NOICC – breached condition 8202 – an extensive period of non-enrolment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 359
Migration Regulations 1994 (Cth), Schedule 8
CASES
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 14 November 2022 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.
On 7 December 2023, the Tribunal sent the applicant an Invitation to Attend a Hearing letter (by email) which advised that a hearing had been listed for 6 February 2024 at 9.00am (WA time). The Invitation informed the applicant that if he was unable to attend the hearing he should advise the Tribunal as soon as possible. The Invitation advised that if he did not attend the hearing a decision may be made on the review without taking any further action to allow or enable him to appear before the Tribunal or that his application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal. The Invitation was sent to the applicant’s email address provided by him in his Application for Review lodged on 21 November 2022.
The applicant did not respond to the Invitation.
On 20 December 2023 and 23 January 2024, the Tribunal sent the applicant emails requesting that a Hearing Response be provided. The Invitation was sent to the applicant’s email address provided by him in his Application for Review lodged on 21 November 2022.
On 30 January 2024, the Tribunal sent the applicant an email which included the following:
On 7 December 2023 we sent a letter inviting you to attend a hearing in person on 6
February 2024 to give evidence and present arguments relating to the issues arising in your case.
Our records indicate that you departed Australia on 8 October 2023 and have not

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: Lutchmiah (Migration) [2024] AATA 517
Case: [2024] AATA 517
Decision Date: 10 February 2024

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr Lutchmiah, against the cancellation of his Student (Temporary) (Class TU) visa, subclass 500. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation (NOICC) due to the applicant ceasing to be enrolled in a registered course from 21 February 2020, thereby breaching visa condition 8202. The applicant did not respond to the NOICC and failed to attend the tribunal hearing.

The Migration Review Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) existed and, if so, whether to exercise its discretion to cancel the visa. The Tribunal also considered the applicant's purpose for being in Australia and whether there was a compelling need for him to remain.

The Tribunal found that the ground for cancellation under s 116(1)(b) was established because the applicant had failed to comply with visa condition 8202(2)(a) by not maintaining enrolment in a registered course. While this ground did not mandate cancellation, the Tribunal proceeded to consider its discretion. It noted the applicant's extensive period of non-enrolment, spanning approximately two years and eight months, which meant he was not fulfilling the purpose for which his visa was granted. Despite acknowledging that visa cancellation is a significant matter, the Tribunal, on balance and considering all circumstances, concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Class TU 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, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. On 3 October 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 21 February 2020 and had therefore failed to comply with condition 8202(2)(a) of his visa. The applicant did not respond to the NOICC. As the applicant did not respond to the NOICC and did not attend the hearing or provide written submissions prior to the hearing, the Tribunal has relied on the information contained in the Department’s file including the Decision Record. The applicant’s PRISMS record shows he completed one course, an Advanced Diploma of Technology-Electrical course in 2017. PRISMS shows he had two courses cancelled, a Bachelor of Engineering course was cancelled in 2015 and a Bachelor of Engineering (Electrical and Renewable Energy) Honours course in 2020. Relevant to the decision under review, PRISMS shows the applicant’s enrolment in the Bachelor of Engineering course was cancelled in 2020 due to Unsatisfactory course progress. Given the applicant’s failure to attend the hearing the Tribunal was not able to put his PRISMS record to him for his comment or response under s 359AA of the Act. Accordingly, the Tribunal places no weight on the applicant’s PRISMS record save for the enrolment which was cancelled on 21 February 2020. This enrolments was discussed in the NOICC and in the delegate’s decision and the Tribunal considers that the applicant has been given an opportunity to respond to this enrolment cancellation and has not disagreed with the information. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.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 purpose of the applicant’s visa was to enable him to study. The applicant was not enrolled in a course of study for a period of 2 years 8 month from February 2020 until he received the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia. Given the applicant’s failure to appear at the hearing, the Tribunal was unable to ask him whether there was a compelling need for him to travel to or remain in Australia.