Masood (Migration) - [2022] AATA 4284

Masood (Migration) [2022] AATA 4284 (8 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Fahad Masood
REPRESENTATIVE:  Mr Ajay Bansal (MARN: 1569359)
CASE NUMBER:  2200757
HOME AFFAIRS REFERENCE(S):          BCC2020/869961
MEMBER:Christine Kannis
DATE:8 October 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 08 October 2022 at 11:54am
CATCHWORDS
MIGRATION – cancellation – Student (Class TU) visa – Subclass 500 (Student) – failure to comply with condition of visa – not enrolled in full-time registered course – study history – two courses completed and others ceased or not commenced – enrolment in lower-level courses in different subject areas – new enrolments made after department’s notice issued and tribunal hearing – discretion to cancel visa – death of father – no counselling or deferment sought – lengthy period of non-enrolment – no extenuating or compassionate circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359A, 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 8, condition 8202(2)(a), (b)
Education Services for Overseas StudentsAct 2000 (Cth), s 19(3)
CASE
Liu v MIMIA [2003] FCA 1170
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 14 January 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 23 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review.
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
Procedural Matter
On 20 July 2022, the Tribunal sent the applicant an Invitation to Attend a Hearing on 23 August 2022. The Invitation was sent to the applicant’s representative. The Invitation advised:
Please read and complete the enclosed ‘Response to hearing invitation’ form and
return it to the AAT within 7 days of receipt of this letter. Please use the ‘Response to
hearing invitation’ form attached to this letter or attach additional information if you
have any requests or any new information which you wish us to consider. Any
documents or written submissions…

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 Masood (Migration)

Details

AGLC: Masood (Migration) [2022] AATA 4284
Case: [2022] AATA 4284
Decision Date: 8 October 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant had failed to comply with a condition of his visa, specifically condition 8202, which requires a student visa holder to maintain enrolment in a registered course that will lead to a qualification at the same or higher level than the course for which the visa was granted. The applicant had completed two courses but had ceased study in a relevant course from April 2019, remaining unenrolled for a significant period before new enrolments were made after the Department issued a notice of intention to cancel and shortly before the Tribunal hearing. The Administrative Appeals Tribunal (AAT) was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal considered whether the applicant had breached visa condition 8202. The evidence indicated that the applicant had not been enrolled in a registered course consistent with the purpose of his student visa for approximately two years and eight months. The Tribunal found that new course enrolments made after the notice of intention to cancel and the day after the hearing were not indicative of genuine compliance with the visa conditions prior to these events. The Tribunal also considered the applicant's stated purpose for remaining in Australia, which was to have "something to show that he didn’t waste all of his time," and did not consider this to be a compelling need.

The Tribunal concluded that the ground for cancellation under section 116(1)(b) of the Migration Act 1958 was established. In exercising its discretion, the Tribunal weighed the circumstances, including the lengthy period of non-enrolment and the lack of any extenuating or compassionate circumstances. The Tribunal affirmed the decision to cancel the applicant's 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 EVIDENCEProcedural Matter On 20 July 2022, the Tribunal sent the applicant an Invitation to Attend a Hearing on 23 August 2022. The Invitation was sent to the applicant’s representative. The Invitation advised:Please read and complete the enclosed ‘Response to hearing invitation’ form andreturn it to the AAT within 7 days of receipt of this letter. Please use the ‘Response tohearing invitation’ form attached to this letter or attach additional information if youhave any requests or any new information which you wish us to consider. Anydocuments or written submissions sent to us should be in English or translated by aqualified translator.If you are not able to appear as scheduled, for instance, if you are not available on this day or you believe you will experience difficulty participating in the hearing asarranged, you need to advise us as soon as possible. Please note that we will onlymake changes to this hearing if satisfied that it is reasonable and there are goodreasons for doing so.The Presiding Member will consider any submissions and you will be advised of theoutcome of that consideration before the hearing. You must assume that the hearing will go ahead as scheduled unless we have advised you otherwise. On 16 August 2022, the applicant’s representative advised the Tribunal as follows:We are writing regarding the above-mentioned client.We have been trying to contact the client multiple times. However, we are unable to reach him.We have not received any further instructions from the client, and we are unable to contact him.Thus, we do not want to represent his case. Kindly, contact the client himself in regards to his case.His contact details are as:Phone: [Number]Email: [Address] On 16 August 2022, the Tribunal sent the applicant the following letter. The letter was sent to the applicant’s representative because as the applicant’s authorised recipient, by law Tribunal is required to continue to sending correspondence in connection with the review to the representative unless and until the applicant advises otherwise.CONFIRMATION OF REPRESENTATIVE NO LONGER ACTING ANDWITHDRAWAL OF AUTHORISED RECIPIENT – MR MUHAMMAD FAHADMASOODI am writing in relation to the application for review made by you in respect of adecision to cancel your Subclass 500 (Student) visa.You nominated Mr Ajay Bansal as your authorised recipient to receive correspondence in connection with this review.On 16 August 2022 we were told by Mr Ajay Bansal that they no longer represent you in this review and should no longer receive correspondence on your behalf.It is important that you now complete and return one of the following forms to us assoon as possible. We will continue to send correspondence to Mr Ajay Bansal if youdo not return either of the forms mentioned below.1. Appointment of Representative/Appointment of Authorised Recipient form (MR5)If you wish to appoint another person as your authorised recipient and/orrepresentative, you should complete this form. When we have received the completed form, all future correspondence will be sent to the newly nominated authorised recipient. Please refer to the reverse side of the form for more information.OR2. Change of Contact Details form (MR6)If you do not wish to appoint another person as your authorised recipient and want allfuture correspondence from us to be sent to you directly, you should complete thisform to confirm the withdrawal of Mr Ajay Bansal as your authorised recipient. Whenwe have received the completed form, all future correspondence will be sent to you.If you have any questions, please email mrdivision@aat.gov.au, or contact me on thenumber listed below, or telephone our national enquiry line on 1800 228 333. Forlanguage assistance, please contact the Translating and Interpreting Service (TIS) on 131 450

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. 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 applicant told the Tribunal his purpose in coming to Australia was to study Information Technology. He subsequently changed his mind and decided to pursue Business studies. The purpose of the applicant’s visa was to enable him to study a registered course that will provide a qualification from the AQF that is at the same level as or at a higher level than, the course in relation to which the visa was granted. The applicant’s PRISMS record indicates that he has completed a Diploma of Information Technology Networking and a Diploma of Business however he ceased study at the required level form 15 April 2019 . Therefore from 15 April 2019 he was not enrolled in study which was consistent with the purpose of a Student visa. At the time the NOICC was issued, the applicant had not been enrolled in a registered course that will provide a qualification from the AQF that is at the same level as or at a higher level than, the course in relation to which the visa was granted for a period of 2 years 8 months. The applicant stated that he obtained a new CoE following the issuing of the NOICC. This was a CoE for a Graduate Diploma of Management which was created on 15 December 2021. A CoE for a Bachelor course created on the day after the hearing was provided to the Tribunal. These CoEs appear to have been obtained as a consequence of the cancellation decision and as such the Tribunal places no weight on them as evidence that the applicant was fulfilling the purpose of his travel and stay in Australia from 15 April 2019 until the NOICC was issued. The applicant’s enrolment in the Graduate Diploma of Management has been cancelled and as noted, the CoE for the Bachelor of Business was created the day after the hearing and the course commences on 16 January 2023. 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 for a lengthy period of 2 years 8 months. The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response he said he wants to have something to show that he didn’t waste all of his time. The Tribunal does not consider this constitutes a compelling need.