Namgay (Migration) - [2022] AATA 5040

Namgay (Migration) [2022] AATA 5040 (16 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Thinley Namgay
REPRESENTATIVE:  Mrs Preeti Puri (MARN: 0960289)
CASE NUMBER:  2006150
HOME AFFAIRS REFERENCE(S):          BCC2019/5185351
MEMBER:Christine Kannis
DATE:16 August 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 16 August 2022 at 1:16pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – invalid s.375A certificate – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose for travel and stay in Australia – significant breach – extent of the breach – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
CASES
El Jejieh v MHA (No 2) [2019] FCCA 84
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 March 2020 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 on 9 August 2022 to give evidence and present arguments.
At the commencement of the hearing, the Tribunal noted the Department’s file contains a s 375A certificate. The effect of such a certificate is that the Tribunal is prohibited from disclosing the document, or information in it. The Tribunal explained that the information covered by the certificate included details of investigations undertaken by the Department. The Tribunal provided the applicant with a copy of the s 375A certificate and invited him to comment on the validity of the certificate. He made no comment on the validity of the certificate.
The s 375A certificate was not signed and therefore was not valid (El Jejieh v MHA (No 2) [2019] FCCA 840). Notwithstanding that, the Tribunal decided the information was relevant to this review and informed the applicant that it would provide the gist of the information to him during the hearing under s 359AA of the Act. In deciding to disclose the gist of the information the Tribunal took into account the fact that the information was contained in the applicant’s enrolment record which would in any event be put to him as part of the review.
The applicant was represented in relation to the review. The applicant’s representative failed to attend the hearing. The Tribunal delayed the commencement time of the hearing by 15 minutes however…

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 Namgay (Migration)

Details

AGLC: Namgay (Migration) [2022] AATA 5040
Case: [2022] AATA 5040
Decision Date: 16 August 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Namgay, a holder of a Student (Temporary) (Class TU) visa, subclass 500. The dispute arose from the cancellation of his visa by the Department of Home Affairs. The primary issue was whether the cancellation was justified based on Mr. Namgay's failure to comply with his visa conditions.

The Tribunal was required to determine if Mr. Namgay had breached condition 8202 of the Migration Regulations 1994, which mandates enrolment in a full-time registered course. Specifically, the Tribunal needed to ascertain if Mr. Namgay had maintained his enrolment in a registered course as required by the regulations. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that Mr. Namgay had breached condition 8202(2)(a) of his visa because his enrolment in a Bachelor of Business was cancelled on 5 March 2019, and he was not enrolled in a full-time registered course thereafter. While this ground for cancellation did not mandate immediate cancellation, the Tribunal proceeded to consider its discretion. Mr. Namgay provided a detailed explanation of personal difficulties, including issues with his accommodation, feelings of isolation, and a subsequent experience of being misled by an education agent, which led to further complications with his enrolment. Despite acknowledging the significant impact of visa cancellation, the Tribunal, on balance, concluded that the circumstances warranted affirming the decision to cancel the 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 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 23 July 2018 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. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2] [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act. The information from the PRISMS shows that the applicant has not been enrolled in a registered course of study since his enrolment in a Bachelor of Business was cancelled on 5 March 2019. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 5 March 2019 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

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 12 February 2020 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 and was therefore failing to comply with condition 8202(2)(a) of his visa. Response to NOICC On 26 February 2020 the applicant responded to the NOICC and provided the following information:·He provides this letter/response with absolute clarity going against the advice of friends on how he should make up a story or an illness that would lessen the chances of his visa being cancelled.·Unlike his fellow Bhutanese students in Perth, he did not have cousins or friends to stay with and to show him around. ·In his culture the men are responsible for taking care of the family. He has three sisters and is the only son. He decided to come to Australia for his college degree so that it would land him a reputable job back at home. ·Before he came it was decided that he would live with his father’s friend (Mr Kado) who currently holds a PR and lives with his family. The first few weeks were exciting and enjoyable, after that everything just went downhill. ·As time progressed and his classes started, he could sense Mr Kado’s family’s attitude towards him changing. Soon he found himself doing daily chores at the house and before he realised, they had turned him into their personal maid or servant. One of the hardest things to do was waking up before anyone else and making breakfast for everyone, especially packing their kids’ lunch. As much of a cliche this sounds, this really is how he had been living and the part that made him most upset was he could not tell his father because he did not want to cause problems and stir things up between two families that are miles apart. The daily routine itself was enough struggle, going to college was even worse.·He had never felt more alone and did not have a single friend he could talk to about his problems. The thought of going back struck him many times.·He would go four to five days straight without any sleep and couldn’t even remember the last time he actually had a decent meal. The feeling of being helpless and disappointment just weighed on him and it got heavier and heavier.·Finally, he decided to move to Canberra where his brother-in-law was staying. ·While applying for his release from the university, a friend recommended an agent. The agent gave him full assurance that he need not apply for a release while applying for college in another state. After that meeting he applied at Canberra Institute of Technology and got the offer with the help of the agent. Having received the offer letter, the agent asked him to pay his agent fee which he happily obliged. He soon realised he had been conned.·The college in Canberra had blocked his CoE on grounds that he did not get a release from his previous college. Before long, his college had cancelled his CoE and he was still living with his dad’s friend. It was the worst possible thing that could happen to anyone. ·He started having anxiety issues and was in a very deep state of depression and lost track of time.·After six months his brother-in-law visited him and he could tell something was wrong and so he made him stay with his old friends. During that time he started getting better and soon he managed to move to another place of residence and got a part-time job. ·He has re-applied for his course with his original education provider and is currently waiting for a letter of offer.·Many people told him it is better to write a fictitious story which can lead to a proper case and that fake documents can be obtained for money. But he believes that the truth has to be heard whether it favours him or not. He said “I do not have any legal arguments, I assure you everything I have written above is true to its very core.”·He wants a second chance.·He wishes to pursue his education and make his family proud and he wants to be able to return home being able to find a reputable job and take care of his family.Evidence at hearing