NAVEED (Migration) - [2019] AATA 2859

NAVEED (Migration) [2019] AATA 2859 (21 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad NAVEED
CASE NUMBER:  1716553
HOME AFFAIRS REFERENCE(S):           BCC2017/1602055
MEMBER:P. Maishman
DATE:21 June 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 21 June 2019 at 2:08pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – genuine student – enrolment record – non-payment of fees – non-commencement of study – consideration of discretion – fundamental breach – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116, 359AA,140
Migration Regulations 1994 (Cth), r 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 20 July 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 is not, or is 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 appeared before the Tribunal on 21 September 2018 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 Tribunal had before it a copy of the Department’s file containing the visa application and relevant documents.
The applicant gave the Tribunal a copy of the delegate’s decision record and notice of cancellation when he applied for his review. The visa history is summarised from the decision record as follows.
a.The applicant is a 26-year-old citizen of Pakistan. He has been in Australia since 2012 on a student visa. The applicant finished a Diploma of Business on 25 August 2015. His enrolment in the subsequent Advanced Diploma of Business was cancelled for non-payment of fees on 16 March 2016.
b.The applicant was enrolled in Certificate IV in Work, Health and Safety; Diploma of Work Health and Safety; and Advanced Diploma of Work Health and Safety and each of these were cancelled for ‘non-commencement of study’ on 22 September 2016.
c.The Department gave the applicant a Notice of Intention to Consider Cancellation (NOICC) on 22 June 2017 to which the applicant gave a written response on 30 June 2017.
d.The applicant enrolled in Advanced Diploma of Hospitality Management commencing on 7 July 2017.
At the hearing the applicant provided the Tribunal a copy of emails dated 29 April 2016 between him and World College Group; transaction statements indicating payments to Marshall Freeman (debt collectors) on 8 April 2016 in 21 April 2016; and an email from…

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 NAVEED (Migration)

Details

AGLC: NAVEED (Migration) [2019] AATA 2859
Case: [2019] AATA 2859
Decision Date: 21 June 2019

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector). The applicant, a citizen of Pakistan, had been in Australia since 2012 on various student visas. The core of the dispute revolved around whether the grounds for cancellation under section 116(1)(fa) of the Migration Act 1958 (Cth) were met, and if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to determine if the applicant was a "genuine student" as contemplated by section 116(1)(fa)(i) of the Act, or if he had engaged in conduct not contemplated by the visa under section 116(1)(fa)(ii). If these grounds were established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including government policy and matters raised by the applicant. The legal principles applied included the interpretation of "genuine student" as established in cases such as *MIMA v Hou* [2002] FCA 574, and the consideration of factors relevant to the exercise of discretionary powers under the Act.

The Tribunal found that the grounds for cancellation were met. The applicant's enrolment in an Advanced Diploma of Business was cancelled due to non-payment of fees on 16 March 2016. Subsequently, several other course enrolments were cancelled for non-commencement of study by 22 September 2016. While the applicant later enrolled in new courses, these actions indicated a failure to genuinely undertake studies to obtain qualifications, a fundamental breach of student visa conditions. Although the Tribunal acknowledged potential financial and emotional hardship, it found that the circumstances surrounding the grounds for cancellation weighed heavily in favour of exercising the discretion to cancel the visa.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. The Tribunal concluded that the applicant had ceased to be a genuine student and that the circumstances of his non-compliance with visa conditions justified the cancellation.

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 Tribunal had before it a copy of the Department’s file containing the visa application and relevant documents. The applicant gave the Tribunal a copy of the delegate’s decision record and notice of cancellation when he applied for his review. The visa history is summarised from the decision record as follows.a.The applicant is a 26-year-old citizen of Pakistan. He has been in Australia since 2012 on a student visa. The applicant finished a Diploma of Business on 25 August 2015. His enrolment in the subsequent Advanced Diploma of Business was cancelled for non-payment of fees on 16 March 2016. b.The applicant was enrolled in Certificate IV in Work, Health and Safety; Diploma of Work Health and Safety; and Advanced Diploma of Work Health and Safety and each of these were cancelled for ‘non-commencement of study’ on 22 September 2016. c.The Department gave the applicant a Notice of Intention to Consider Cancellation (NOICC) on 22 June 2017 to which the applicant gave a written response on 30 June 2017.d.The applicant enrolled in Advanced Diploma of Hospitality Management commencing on 7 July 2017. At the hearing the applicant provided the Tribunal a copy of emails dated 29 April 2016 between him and World College Group; transaction statements indicating payments to Marshall Freeman (debt collectors) on 8 April 2016 in 21 April 2016; and an email from ******@pcbt.wa.edu.au dated 7 July 2017. The Tribunal notes that only part of the email dated 29 April 2016 (i.e. applicant’s response not included) is contained on the Department’s file. The Department’s file also contains a comprehensive list of debt repayments between 8 April 2016 and 12 July 2017. 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]).

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.P. MaishmanMemberATTACHMENT – 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) 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’. The applicant was granted a Subclass 572 Vocational Education and Training Sector to undertake study to obtain an educational qualification in Australia. The Tribunal applicant gave evidence that he arrived in Australia in 2012 and had always planned a business enterprise in fashion design. He completed a Certificate IV and Diploma in Marketing and Business in 2013. His migration agent suggested he undertake courses in cookery and hospitality however he found he had allergies and went back to business studies. PRISMS shows the applicant finished further Diploma of Business studies in December 2014 and August 2015. The applicant enrolled in an Advanced Diploma of Business from 5 October 2015 but that enrolment was cancelled on 16 March 2016 because the applicant did not pay the required fees. The applicant obtained a number of enrolments in various courses commencing 6 June 2016 through until 6 March 2019 but did not commence any of those studies. The applicant says his only compelling need to remain in Australia is to retain his dignity. The Tribunal finds that the purposes of the applicant’s travel and stay in Australia were to undertake studies to obtain qualifications in the vocational education and training sector. Albeit that the applicant was enrolled in other courses until 22 September 2016, the applicant ceased to be genuinely undertaking studies to obtain qualifications with the cancellation of his enrolment on 16 March 2016. The Tribunal finds the applicant does not have a compelling need to remain in Australia. The Tribunal finds the applicant failed to maintain an enrolment in an approved course of study which is a fundamental breach of a student visa and weighs against the applicant in assessing whether the discretion to cancel the visa should be exercised. The Tribunal acknowledges the applicant’s claims that his parents had spent a lot and would be disappointed. The Tribunal does not put weight on the applicant’s claim to be taking antidepressants because he says he has not yet seen a doctor in Australia. The Tribunal accepts the cancellation of the visa may cause a degree of financial and emotional hardship and the Tribunal gives some weight in favour of the applicant in assessing whether the discretion to cancel the visa should be exercised. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but was not considered a genuine student. The applicant’s enrolment was cancelled because of non-payment of fees on 16 March 2016. Although he subsequently enrolled in courses, each of these enrolments were cancelled by 22 September 2016 because of non-commencement of studies. The applicant was not enrolled in any course until 19 June 2017 after receiving the Department’s NOICC. The Tribunal finds the circumstances in which the grounds of cancellation arose weigh in favour of exercising the discretion to cancel the applicant’s visa.