Mandeep Kumar (Migration) - [2018] AATA 5643

Mandeep Kumar (Migration) [2018] AATA 5643 (6 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mandeep Kumar
CASE NUMBER:  1701850
HOME AFFAIRS REFERENCE(S):           BCC2016/3806132
MEMBER:Sean Baker
DATE:6 December 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 06 December 2018 at 1:41pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector visa – genuine student – enrolment ceased without applicant’s knowledge – gap in studies – payment to college during non-enrolment – decision under review affirmed
LEGISLATION
Education Services for Overseas Students (ESOS) Act
Migration Act 1958, ss 116, 119, 140
Migration Regulations 1994, Schedule 8 Condition 8202; rr 1.40, 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 24 January 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant was not, or was 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 provided a copy of the decision record and a copy of the notification of cancellation to the Tribunal.
The applicant appeared before the Tribunal on 30 October 2018 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.
Does the ground for cancellation exist?
A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.
In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has 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.

Continue reading Mandeep Kumar (Migration)

Details

AGLC: Mandeep Kumar (Migration) [2018] AATA 5643
Case: [2018] AATA 5643
Decision Date: 6 December 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mandeep Kumar, who sought review of the decision to cancel his Subclass 572 Vocational Education and Training Sector visa. The dispute centred on whether Mr. Kumar was a "genuine student" as required by his visa conditions and the Migration Act 1958 (Cth).

The Tribunal was required to determine if the ground for cancellation under section 116(1)(fa)(i) of the Act, which relates to a student visa holder not being a genuine student, was made out. Additionally, the Tribunal had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including the applicant's compliance with visa conditions and the potential hardship that cancellation might cause.

The Tribunal reasoned that Mr. Kumar had not maintained his original study plan, had experienced significant gaps in his enrolment totalling over eight months, and had not completed the courses for which his visa was granted. While acknowledging that Mr. Kumar had studied and completed a course prior to the extended period of non-study, the Tribunal found that his prolonged period without enrolment while remaining in Australia on a student visa indicated he was not a genuine student. Furthermore, the Tribunal noted a breach of visa condition 8202(2) due to the extended period of non-enrolment. Despite the applicant's claims of hardship, the Tribunal concluded that the cumulative circumstances, particularly the extended period of non-study and the breach of visa conditions, weighed in favour of cancellation.

Consequently, the Tribunal affirmed the decision to cancel Mr. Kumar's Subclass 572 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.Does the ground for cancellation exist? A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]). For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision. This is not a case in which the prescribed matters are in issue. It is clear that the matters which may be considered go beyond the prescribed matters: s.116(1A). As set out in the decision record which the applicant provided to the Tribunal:Provider Registration and International Student Management System (PRISMS) indicates that MANDEEP KUMAR has not maintained the study plan that he outlined when he applied for his current subclass 572 student visa.The information before me indicates that MANDEEP KUMAR was granted a Student (Temporary) Vocational Education and Training Sector (subclass 572) visa which was granted on 24 April 2015.When MANDEEP KUMAR applied for the visa his study plan was:- Diploma of Marketing (COE; 6FDA5659) with South Pacific Institute (16 March 2015 – 28 February 2016)- Advanced Diploma of Marketing (COE: 6FDA6019) with South Pacific Institute (14 March 2016 – 12 March 2017)PRISMS shows that he commenced the diploma of Marketing and studied between 16 March 2015 and 19 July 2015.On 22 July 2015, the enrolment in Diploma of Marketing (COE; 6FDA5659) was then cancelled due to variation reason: Change to a course in the same sector. Subsequently cancelling Advanced Diploma of Marketing (COE: 6FDA6019). On 22 July 2015 he obtained a new enrolment in Diploma of Marketing (COE: 74C73F50) course date between 20 July 2015 and 28 February 2016 and Advanced Diploma of Marketing (COE 74C74D46) course dates 14 March 2016 to 12 March 2017, with South Pacific Institute.PRISMS shows he studied this course between 20 July 2015 and 4 January 2016.On 8 January 2016, his COE in Diploma of Marketing (COE: 74C73F50) was cancelled due to “Student Notifies Cessation of Studies”. This subsequently cancelled his COE for Advanced Diploma of Marketing (COE 74C74D46)On 11 October 2016 he obtained a further enrolment in Diploma of Marketing (COE: 853F3452) course duration 26 September 2016 to 8 January 2017. PRISMS show that the course was completed on 8 January 2017. However, there is no evidence that he successfully completed this course.Therefore, Departmental records suggest:- He applied for a Student (Temporary) (class TU) Vocational and Training Sector (subclass 572) visa which was granted 24 April 2015 to study Diploma of Marketing and Advanced Diploma of Marketing. He therefore did not maintain the study plan that he outlined when you applied for his student visa.- He did not study between 8 January 2016 and 26 September 2016.This indicates that he had not studied for a cumulative period in excess of eight (8) months.- He does not currently hold a valid CoE in a Vocational Education and Training Sector level course required by your visa.During the application process for this student visa MANDEEP KUMAR stated that his intended purpose of travel to and stay in Australia was to study. MANDEEP KUMAR was granted a TU-572 visa to study Diploma of Marketing and Advanced Diploma of Marketing however he did not complete both these courses.MANDEEP KUMAR did not study for a cumulative period in excess of eight (8) months between 8 January 2016 and 26 September 2016.MANDEEP KUMAR holds a TU-572 Vocational Education and Training Sector visa but since 9 January 2017 has not enrolled in a Vocational Education and Training Sector course and has not enrolled in a course of study that is a principal course of a type specified for Subclass 572 visas by the Minister in an instrument made under regulation 1.40A.Based on the above assessment, I do not accept that MANDEEP KUMAR is a genuine student, given his lack study whilst remaining in Australia on a visa granted for the primary intention to study.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.Sean BakerMemberATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994…(1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.(1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:(a)because of the conduct of the holder; or(b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or(c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or(d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) 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’. I have had regard to the response to the NOICC but I note that this largely went to questions of whether the ground existed, as does the submission made to the Tribunal. I have considered these below. At hearing I discussed with the applicant the below matters and sought from him any further information that may go to the consideration of the discretion.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 claimed that his purpose in coming to and staying in Australia was to study. Whilst I have the above concerns with the genuineness of the applicant’s intention to study in the period considered above in 2016, I am willing to accept that the applicant did study and complete his course prior to this date, and I therefore give this factor some weight towards the visa not being cancelled. the extent of compliance with visa conditions I explained to the applicant that the information in the Departmental decision, which he had not disputed, was that he was not enrolled in a registered course between 9 January 2016 and 10 October 2016, which we had discussed in the context of the ground, above. I explained that this was a breach of condition 8202(2) on his student visa, that he be enrolled in a registered course or a course of study or training, and that I would need to take this into account. He acknowledged this. The applicant said he had been working as a security guard part time during the period he held a student visa, and had don’t 15-18 hours a week. He said now he was not working but was being supported by friends and family. There is no evidence before me to indicate that the applicant has breached conditions other than 8202 when he held his student visa. The breach of condition 8202(2) was for a considerable period and as above I have not accepted his explanations for this, I therefore give this some weight towards the visa being cancelled. degree of hardship that may be caused (financial, psychological, emotional or other hardship) I explained this factor to the applicant. He said that if the visa remained cancelled it would lead to every kind of hardship. He said there was emotional hardship as he had been stressed after the visa cancellation and really sad. I asked about his family and he said that they are really concerned too but are still supporting him.