Maddi (Migration) - [2023] AATA 4865

Maddi (Migration) [2023] AATA 4865 (12 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Nikhil Maddi
CASE NUMBER:  2216340
HOME AFFAIRS REFERENCE(S):          BCC2022/2693376
MEMBER:Christine Kannis
DATE:12 December 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 12 December 2023 at 2:16pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa – non-engagement in the study – mental stress – financial issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
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 4 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.
The applicant appeared before the Tribunal by MS Teams video on 5 December 2023 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
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.
Did the applicant comply with condition 8202?
On 21 February 2022, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a full-time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

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 Maddi (Migration)

Details

AGLC: Maddi (Migration) [2023] AATA 4865
Case: [2023] AATA 4865
Decision Date: 12 December 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Maddi, a holder of a Student (Temporary) (Class TU) visa, subclass 500. The dispute arose from the Department of Home Affairs' intention to cancel Maddi's visa on the grounds that he had ceased to be enrolled in a registered course, thereby failing to comply with visa condition 8202(2)(a).

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether to exercise its discretion to cancel the visa. The applicant provided extensive information in response to the notice of intention to consider cancellation, detailing personal circumstances including the death of his grandmother, travel restrictions due to COVID-19, difficulties with his education provider regarding enrolment and re-enrolment, and the impact of these issues on his mental health.

In its reasoning, the Tribunal acknowledged that the ground for cancellation was established. It then proceeded to consider the exercise of discretion, taking into account the applicant's submissions and relevant departmental procedures. While recognising the seriousness of visa cancellation, the Tribunal weighed the applicant's explanations, including his academic background, the unforeseen difficulties encountered, and his stated intention to comply with visa conditions in the future, against the breach. Ultimately, the Tribunal concluded that, on balance, the circumstances warranted the cancellation of the visa.

The Tribunal affirmed the decision to cancel Maddi'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 his representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. On 14 September 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 12 May 2022 to 1 September 2022 and had therefore failed to comply with condition 8202(2)(a) of his visa. Response to NOICC On 30 September 2022, the applicant responded to the NOICC and provided the following information:·He was a bright student with an outstanding educational background.·He arrived in Australia in 2017 to study in a Master 's program. He completed a Master of Information Technology in February 2019 from Charles Sturt University. After that he had an opportunity to avail post study work visa to explore Australian workplace environment. He has also completed the Professional Year Program where he had an opportunity to work in a professional environment under the supervision of many experienced staff members. ·Before coming to Australia he completed year 10 in May 2010 and year 12 in March 2012 . He completed a Bachelor of Technology (Electronics & Instrumentation Engineering) from Gandhi Institute of Technology and Management, India in April 2016 and passed with first division.·Before coming to Australia, he lived with his parents, grandparents, uncle and Aunt. He was attached to his grandmother; she died in India on 19th May 2021. He was in Australia at that time and due to COVID and travel restrictions he couldn’t see her a last time or attend her last rituals. He wanted to go to India but his family recommended he avoid travel. It was a devastating and difficult time as he was alone and was in guilt for not being there. ·He planned to go to India on his grandmother’s one year anniversary and perform rituals for her eternal soul. He travelled to India from April 2022 to 6 June 2022. He had applied for a deferment and assumed it would have been processed by college. However, upon arrival he found his CoE inactive. He went to the college for assistance but they had a lack of staff so it was not done straight away. He also brought to their attention that he didn’t receive notice of CoE cancellation. The staff member was new/untrained and she didn’t know how to handle it. She was not able to re-enrol him due to system error. He tried to communicate with them for a few days but due to the staff shortages they were unable to assist. After many attempts he decided to change course and went to an education agent to seek help in admission to another education provider. They assisted him in gaining admission and CoE for a registered course in Lennox college. He is currently enrolled and studying for a Diploma of Leadership and Management. ·Post COVID world is hard and it is not easy to adapt to new technological and environmental changes. Education institutions have changed. His education provider Greenwich College is no different. Classes and student support was online. He wanted to speak in person about his situation, but the institution kept referring him to student support through phone lines and virtual calls where he was not getting adequate help to sort out the situation. Prior to COVID these scenarios were easily handled but post COVID staff shortages are rife and international students are not getting enough help. ·Due to these unforeseen circumstances his mental health is affected. He consulted a GP who referred him to a psychologist. He doesn’t want his life / career to derail any further and he requests this opportunity to revive his career considering all the academic progress he has achieved and not let these past few months ruin his life.·He is a person of good character and has always been law-abiding. Despite his difficulties he has tried to be a good student. He only lacks with his education in the past year because of the reasons mentioned. He has always wanted to go far in his education and has studied following qualifications for more than 10 years.·He understands he was not enrolled in a registered course from May 2022 until September 2022 and breached a visa condition however he has invested his whole life in studies and has made good academic progress. He has learnt his lesson and will be vigilant and follow the visa conditions. ·He breached the visa conditions unintentionally. It was not in his plan and he has realised his mistake and tried to overcome it.