Panchal (Migration) - [2024] AATA 3089

Panchal (Migration) [2024] AATA 3089 (13 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rakshain Jagdish Panchal
REPRESENTATIVE:  Mr Ajay Bansal (MARN: 1569359)
CASE NUMBER:  2307544
HOME AFFAIRS REFERENCE(S):          BCC2022/5283061
MEMBER:Christine Kannis
DATE:13 August 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 13 August 2024 at 7:32am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa – breached condition 8202 – applicant had not been enrolled in a registered course of study – symptoms of Allergic Asthma – no extenuating or compassionate circumstances in this case – no compelling need to for the applicant to remain in Australia – breach did not occur in circumstances beyond the applicant’s control – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000 (ESOS Act), s 19
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8
CASES
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 22 May 2023 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 by MS Teams on 29 July 2024 to give evidence and present arguments.
The applicant was represented in relation to the review.
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 25 October 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…

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 Panchal (Migration)

Details

AGLC: Panchal (Migration) [2024] AATA 3089
Case: [2024] AATA 3089
Decision Date: 13 August 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, subclass 500, held by Mr. Panchal. The dispute arose because Mr. Panchal had breached visa condition 8202 by failing to maintain enrolment in a registered course of study. The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal found that Mr. Panchal had indeed breached condition 8202(2)(a) by ceasing to be enrolled in a registered course from 4 November 2021. While Mr. Panchal provided reasons for his non-compliance, including medical issues necessitating travel to India for treatment and difficulties with his education provider, the Tribunal concluded that these circumstances did not constitute extenuating or compassionate circumstances, nor did they demonstrate a compelling need for him to remain in Australia. The Tribunal also found that the breach did not occur in circumstances beyond his control.

In exercising its discretion, the Tribunal acknowledged the significant consequences of visa cancellation for Mr. Panchal, including psychological impact and the potential for shame and inability to develop a career pathway. However, on balance, the Tribunal determined that these factors did not outweigh the need to uphold visa conditions. Consequently, the Tribunal affirmed the decision to cancel Mr. Panchal's 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

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 his representative and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. On 20 March 2023 and 6 April 2023, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 4 November 2021 and had therefore failed to comply with condition 8202(2)(a) of his visa. On 19 April 2023, the applicant responded to the NOICC via his migration agent and provided the following information: The applicant was not able to comply with condition 8202 due to compelling reasons and events beyond his control. The applicant had medical issues which resulted in him travelling to India where he spent significant time in treatment. He travelled to India from 17 January 2022 to 16 May 2022. He had requested a deferral from his previous education provider before he left for India and had the impression it was granted. After he returned from India he was not 100% so he requested more time from the college but was told to pay his fees that were due. He started organising payment and was not aware his CoE had already been cancelled. His medical conditions worsened between May 2022 and January 2023 so he was not able to concentrate on his education. He travelled to India for treatment from 26 January 2023 to 2 March 2023. He then decided to start fresh and advised his previous education provider he was pursuing a career as a chef. The applicant was unaware his CoE from the previous education provider was cancelled until he returned from India on 2 March 2023 when he acquired another CoE from his current education provider to study Certificate III in Commercial Cookery, Certificate IV in Kitchen Management and Graduate Diploma of Management. Cancellation will have extreme consequences for the applicant psychologically. After spending years here he will return home without any qualification and it will be matter of shame for him. He will not be able to develop his own career pathway. He has suffered in recent years with his medical condition and would be devastated to return have nothing to show for his effort. The applicant wants to complete a course in Australia before he returns to India. He did research and took suggestions from family and friends to decide on the career to pursue. With his current health the applicant may not be able to work for his entire adulthood so he wants to work while he can and establish a business. He was inspired by hospitality in Australia and plans to introduce such cuisines in his own country. Therefore, he decided to enrol for Certificate III and IV in Hospitality and Diploma and Graduate Diploma course in Management field. If the applicant is permitted to continue studying this will save him further hardships and help fulfil his dream to have a fulfilling career in India. He and his family have gone through hardships during the last 2 years and cancellation will put further hardship on them.