Mukhtar (Migration) - [2025] ARTA 408

Mukhtar (Migration) [2025] ARTA 408 (14 February 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Ali Mukhtar
Respondent:  Minister for Home Affairs
Tribunal Number:  2318565
Tribunal:General Member C Kannis
Place:Perth
Date:14 February 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 14 February 2025 at 12:10pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – gap in studies – late course fee payment – family health issues – return visit to Pakistan – limited communication from university – financial hardship – good academic progress when in Australia – compelling need – decision under review set aside
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 359
Migration Regulations 1994, Schedule 8, Condition 8202; rr 1.03, 2.43
CASES
Liu v MIMIA [2003] FCA 1170
Plaintiff M64/2015 v MIBP [2015] HCA 50
STATEMENT OF REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
2.The delegate cancelled the visa under s 116(b) on the basis that 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.
3.The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT).
4.On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
5.The applicant appeared before the Tribunal on 10 February 2025 to give evidence and present arguments.
6.The applicant was represented in relation to the review.
7.For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE
8.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. In determining whether the visa should be cancelled, the decision-maker must have regard to all…

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 Mukhtar (Migration)

Details

AGLC: Mukhtar (Migration) [2025] ARTA 408
Case: [2025] ARTA 408
Decision Date: 14 February 2025

CaseChat Overview and Summary

The case of Mukhtar involved a challenge to the cancellation of a Subclass 500 (Student) visa. The primary issue was whether the student visa should be revoked due to a gap in studies, a late fee payment, family health issues, and a visit to Pakistan. The Tribunal was tasked with determining if the visa holder had met the requirements of their visa, specifically concerning enrolment in a full-time registered course and maintaining satisfactory attendance and progress. The Tribunal was also required to weigh the reasons for the visa holder's non-compliance against their overall circumstances, including their academic progress and financial hardship.

The Tribunal considered the evidence presented by the applicant, including the reasons for the gap in studies and late fee payment. The applicant had faced significant family health issues and returned to Pakistan for a visit, which led to limited communication with the university and a gap in studies. The Tribunal acknowledged the financial hardship faced by the applicant and the compelling reasons for the non-compliance. The applicant had demonstrated good academic progress during their time in Australia, which was a mitigating factor. The Tribunal concluded that the compelling reasons for the non-compliance, alongside the applicant's satisfactory academic progress, warranted a decision not to cancel the visa.

The Tribunal found that the compelling circumstances surrounding the visa holder's non-compliance, including family health issues, financial hardship, and the visit to Pakistan, outweighed the negative aspects of the application. The Tribunal determined that the decision to cancel the visa was not justified in light of the whole circumstances. Therefore, the Tribunal set aside the decision to cancel the visa and substituted it with a decision not to cancel the visa, allowing the applicant to continue their studies in Australia.

The Tribunal ordered that the decision to cancel the Subclass 500 (Student) visa be set aside and that a new decision be made not to cancel the visa. The Tribunal emphasised the importance of considering the whole circumstances of the applicant and the compelling reasons for the non-compliance when making such decisions. The Tribunal's decision provides clarity on the factors that should be taken into account in similar cases involving student visa holders.

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 and on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.Date(s) of hearing: 10 February 2025Representative for the Applicant: Mr Bhaumik Patel (MARN: 2217778)ATTACHMENTMigration 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

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