PAHONCHIYA (Migration) - [2020] AATA 861

PAHONCHIYA (Migration) [2020] AATA 861 (14 April 2020)

DECISION RECORD

DIVISION:		Migration & Refugee Division
APPLICANT:		Mr Mohammedzuber Gulamhusen Pahonchiya
CASE NUMBER:		1822031
HOME AFFAIRS REFERENCE:		BCC2018/953761
MEMBER:		Dr Jason Harkess
DATE:		14 April 2020
PLACE OF DECISION:		Melbourne
DECISION:		The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 14 April 2020 at 4:14pm

CATCHWORDS

MIGRATION – visa cancellation – Student (Temporary) (Class TU) Subclass 500 – non-compliance with visa condition – Condition 8202 – not enrolled in registered course – enrolled in course at lower AQF level than contemplated by visa grant – 11 months continuous non-compliance – whether extenuating circumstances – illness and death of grandfather – mental health issues – no supporting medical evidence – decision under review affirmed

PRACTICE & PROCEDURE – use of interpreter at hearing – Gujarati language – standard of interpretation – complaint by applicant – applicable principles – whether applicant denied procedural fairness – whether interpreter qualified and competent – whether complaint made during or after hearing – 14 specific interpretation errors alleged – all complaints unsubstantiated – no denial of procedural fairness

LEGISLATION

Migration Act 1958, ss 68, 116, 119
Migration Regulations 1994, Schedule 2 cls 500.211, 500.611; Schedule 8; Condition 8202; r 2.55

CASES

AZZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2037
Bzaid v Minister for Immigration and Border Protection [2016] FCA 508
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Perera v Minister for Immigration and Multicultural Affairs [1990] FCA 507
Shoukat v Minister for Home Affairs [2020] FCA 194

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

The Applicant is a citizen of India and is 31 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 27 July 2018 cancelling his Student (Temporary) (Class TU) Subclass 500 visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant lodged his review application with the Tribunal on 30 July 2018.

Original Visa Grant

The Applicant’s visa was granted on 11 November 2016. It was granted because a delegate of the Minister had determined that he met the primary criteria for the grant of a student visa.[1]
[1] The primary criteria for the grant of a student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.
The visa had an original expiry date of 30 September 2018 before it was cancelled. It provided for more than 22 months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study. Specifically, the visa had been granted so that the Applicant could complete a Master…

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.

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Details

AGLC: PAHONCHIYA (Migration) [2020] AATA 861
Case: [2020] AATA 861
Decision Date: 14 April 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (the Tribunal) considered the case of PAHONCHIYA, a visa applicant whose Student (Temporary) (Class TU) Subclass 500 visa was subject to cancellation. The dispute arose from the applicant's alleged non-compliance with visa condition 8202, specifically that they were not enrolled in a registered course and were enrolled in a course at a lower Australian Qualifications Framework (AQF) level than contemplated by their visa grant. The applicant claimed extenuating circumstances, including the illness and death of their grandfather and mental health issues, but provided no supporting medical evidence.

The Tribunal was required to determine whether the applicant had breached visa condition 8202 and, if so, whether there were any compelling or compassionate reasons to set aside the delegate's decision to cancel the visa. Additionally, the Tribunal had to consider whether the applicant was denied procedural fairness due to the alleged inadequacy of the interpreter used during the hearing, who was interpreting from Gujarati. The applicant alleged 14 specific interpretation errors, claiming the interpreter was not qualified or competent, and that this constituted a denial of procedural fairness.

In its reasoning, the Tribunal found that the applicant had indeed failed to comply with visa condition 8202 for approximately 11 months. The Tribunal noted the absence of any credible evidence to support the applicant's claims of extenuating circumstances, such as medical certificates or other documentation. Regarding the interpreter, the Tribunal meticulously examined each of the 14 alleged errors and found them to be unsubstantiated. The Tribunal concluded that the interpreter was qualified and competent, and that the applicant had not been denied procedural fairness. The Tribunal affirmed the delegate's decision to cancel the visa.

Orders