PANT (Migration) - [2020] AATA 46

PANT (Migration) [2020] AATA 46 (6 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms AACHAL PANT
CASE NUMBER:  1731613
HOME AFFAIRS REFERENCE(S):          BCC2017/3611221
MEMBER:Stephen Conwell
DATE:6 January 2020
PLACE OF DECISION:  Melbourne
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.
Statement made on 06 January 2020 at 11:44am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – financial issues – divorce – genuine student – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), Schedule 2 cls 573.223, 573.231, condition 8516
CASES

Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 7 December 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant no longer met subclauses 573.231 or 573.223(1A) and had not complied with condition 8516 attaching to her 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.
The applicant appeared before the Tribunal by video from Hobart on 11 December 2019 to give evidence and present arguments. Mr. Milan Ghimire, a friend of the applicant accompanied the applicant and was sworn in as a witness.
The applicant provided a copy of the delegate’s decision to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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)(b). 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.
Background
The applicant is a citizen of Nepal and is currently 23 years old. She was granted a Subclass 573 Student Visa on 22 June 2016 and arrived in Australia a few days later. Prior to her arrival, the applicant participated in an arranged marriage in accordance with her cultural practice. Her husband followed the applicant to Australia some months later, arriving in February 2017.
Shortly after arriving in Australia the applicant commenced Foundation Studies at the University of Technology Sydney (UTS) as a pathway to a Bachelor of Nursing, for which she was also enrolled. The applicant was unable to pass the Foundation Studies and was therefore unable to progress…

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 PANT (Migration)

Details

AGLC: PANT (Migration) [2020] AATA 46
Case: [2020] AATA 46
Decision Date: 6 January 2020

CaseChat Overview and Summary

This matter concerned an appeal by a citizen of Nepal against the cancellation of her Subclass 573 Student (Temporary) visa. The applicant, aged 23, arrived in Australia in 2016 and initially enrolled in Foundation Studies at the University of Technology Sydney as a pathway to a Bachelor of Nursing. She was unable to pass these studies and subsequently experienced difficulties with her education providers, including the voluntary administration of one institution. At the time of receiving the notice of intention to cancel her visa, she was enrolled in a Diploma of Childhood Education.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(b) permits cancellation if the Minister is satisfied that the visa holder has not complied with a condition of their visa. In this case, the relevant condition was 8516, which requires the applicant to continue to satisfy the criteria for the grant of the visa, including maintaining enrolment in a registered course.

The Tribunal found that the applicant had not complied with condition 8516 as she was unable to progress in her intended higher education course and had experienced disruptions to her subsequent enrolments. However, the Tribunal then considered whether to exercise its discretion to cancel the visa. It noted that cancellation was not mandatory under section 116(3). In exercising this discretion, the Tribunal had regard to the applicant's original intention to study in Australia, her ambition to obtain overseas qualifications, and the significant financial and emotional hardship she and her family would suffer if she were unable to complete her studies. The Tribunal also considered that the difficulties in her marriage, which arose shortly after her husband's arrival, may have contributed to her inability to cope with higher education at the relevant time.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision to cancel the applicant's Subclass 573 visa was set aside, and a substitute decision was made not 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 set aside.CONSIDERATION OF CLAIMS AND EVIDENCE 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)(b). 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.Background The applicant is a citizen of Nepal and is currently 23 years old. She was granted a Subclass 573 Student Visa on 22 June 2016 and arrived in Australia a few days later. Prior to her arrival, the applicant participated in an arranged marriage in accordance with her cultural practice. Her husband followed the applicant to Australia some months later, arriving in February 2017. Shortly after arriving in Australia the applicant commenced Foundation Studies at the University of Technology Sydney (UTS) as a pathway to a Bachelor of Nursing, for which she was also enrolled. The applicant was unable to pass the Foundation Studies and was therefore unable to progress in her nursing studies. Upon cancellation of her enrolment in the Bachelor of Nursing the applicant consulted a migration agent, on whose advice she enrolled in Diploma of Nursing at Careers Australia, only to have this education provider pass into voluntary administration in mid-2017. The applicant then enrolled in a Diploma of Childhood Education at New Era and was studying at the time she received the Notice of Intention to Consider Cancellation (NOICC) on 14 November 2017.Does the ground for cancellation exist? A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 is attached to the applicant’s visa. This condition requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant is an eligible higher degree student who satisfies cl.573.223(1A), or, if not, is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 14/015. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a Bachelor’s degree, Master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. As the applicant applied for the visa on 14 June 2016, the relevant instrument specifying eligible education providers for this visa is IMMI 16/003.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelledDECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.Stephen ConwellMember

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 the power to cancel the visa should be exercised.Consideration of discretion Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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 purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. She advised that it was her ambition to study overseas and ideally obtain a nursing qualification since her mother is a nurse who is currently working in Israel. She also enjoys working with children, hence her current enrolment in the childcare sector. The Tribunal has considered these reasons but does not give weight to the applicant having a particularly compelling need to remain in Australia. The extent of compliance with visa conditions There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has given weight to the applicant in this regard.Degree of hardship that may be caused (financial, psychological, emotional or other hardship) During the course of the hearing the Tribunal discussed any hardship that may arise as a result of the visa being cancelled. It was submitted on behalf of the applicant that she was unable to cope with higher education at the relevant time due to the difficulties which surfaced in her marriage not long after her husband’s arrival in Australia. The applicant’s evidence is that her parents struggled financially to afford her application to study in Australia. She still harbours an ambition to obtain overseas qualifications, which are well regarded in Nepal. If she is not able to complete an overseas qualification after having spent so much of her parents’ money thus far, it would be a great financial and emotional cost to her and to her family. The Tribunal accepts that if the applicant were unable to continue the courses she is now enrolled in, she would suffer financial hardship as a result. The Tribunal places some weight in the applicant’s favour in this regard.Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control