Nguyen (Migration) - [2019] AATA 6851

Nguyen (Migration) [2019] AATA 6851 (20 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Anh Viet Nguyen
CASE NUMBER:  1834555
HOME AFFAIRS REFERENCE(S):         BCC2018/4043720
MEMBER:Dominic Triaca
DATE:20 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicants’ Subclass 500 (Student) visa.

Statement made on 20 December 2019 at 3:50pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – enrolment in and completion of work-related, non-registered course – inadvertent breach – applicant likely unaware of breach – study history – completion of registered courses – work history – subclass 457 visa application – bridging visa – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)
CASES

Boettcher v Driscoll (2014) SASC 86
de Angelis v de Angelis [2003] VSC 432
Dimic v Djekovic (2014) NSWSC 1502
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211; (2005) 143 FCR 204

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 19 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not had not been enrolled in a registered course of study since 27 November 2017. 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 24 July 2019 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 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 (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?
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 registered course, or in limited cases, a full time course of study or training: 8202(2)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The delegate found that the applicant had not been enrolled in a registered course of…

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 Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2019] AATA 6851
Case: [2019] AATA 6851
Decision Date: 20 December 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Nguyen, who sought review of a decision to cancel his Subclass 573 Higher Education Sector visa. The cancellation was based on an alleged breach of visa conditions, specifically that Mr. Nguyen was not enrolled in a registered course, but rather in a work-related, non-registered course. Mr. Nguyen argued that any breach was inadvertent and that he had a good study and work history in Australia.

The primary legal issue before the Tribunal was whether the cancellation of Mr. Nguyen's visa was the correct decision, considering the circumstances of the alleged breach and Mr. Nguyen's overall record. The Tribunal was required to determine if the breach was significant enough to warrant cancellation, particularly in light of Mr. Nguyen's prior completion of registered courses and his subsequent application for a Subclass 457 visa, for which he held a bridging visa. The Tribunal also considered whether any international obligations or the best interests of children would be breached by cancellation, and whether Mr. Nguyen had strong ties to Australia, though the latter was deemed irrelevant for a temporary visa.

The Tribunal reasoned that the breach, if any, was minor and should be viewed in the context of Mr. Nguyen's otherwise good track record in Australia. It found that the circumstances did not engage Australia's international obligations and that there were no other significant relevant matters. Applying these considerations, the Tribunal concluded that the visa cancellation should not stand.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Nguyen's Subclass 573 Higher Education Sector visa.

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

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Ratio Decidendi

Legal Principle Established

As set out above, the Tribunal has given this factor weight in favour of the applicant. The breach of the applicant’s student visa was relatively minor and must be viewed in the context that the applicant’s track record in Australia is a good one. The Tribunal does not consider that this particular breach of a student visa ought to operate so as to have a detrimental impact to the applicant’s subsequent visa application. Whether any international obligations, including non-recoupment and best interests of the children as primary consideration, would be breached as a result of the cancellation. The circumstances of the case are not such as to engage Australia’s international obligations.If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia. This matter is not relevant in this application as the cancelled visa is a temporary visa and I give this factor no weight.Any other relevant matters. There appear to be no other relevant matters of significance in relation to the present application for review. 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 573 Higher Education Sector visa.D TriacaMemberATTACHMENTMigration Regulations 1994…Schedule 88202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).(2)A holder meets the requirements of this subclause if:(a)the holder is enrolled in a registered course; or(b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.(3)A holder meets the requirements of this subclause if neither of the following applies:(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:(i)section 19 of the Education Services for Overseas Students Act 2000; and(ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;(b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:(i)section 19 of the Education Services for Overseas Students Act 2000; and(ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.