Patel (Migration) - [2024] AATA 1937

Patel (Migration) [2024] AATA 1937 (11 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Deval Rajnikant Patel
REPRESENTATIVE:  Mr Sagar Shrestha (MARN: 2217871)
CASE NUMBER:  2219058
HOME AFFAIRS REFERENCE(S):         BCC2022/2237798
MEMBER:Christine Kannis
DATE:11 June 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 11 June 2024 at 11:05am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – gap in enrolment – serious health issues – applicant and his wife divorced – applicant changed to vocational course – multiple course cancellations – poor academic progress – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 189, 198, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03
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 16 December 2022 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 20 May 2024 to give evidence and present arguments.
The applicant was represented in relation to the review. His representative did not attend the hearing.
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 24 May 2019, 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 not been certified by his or her…

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 Patel (Migration)

Details

AGLC: Patel (Migration) [2024] AATA 1937
Case: [2024] AATA 1937
Decision Date: 11 June 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa held by Mr Patel. The dispute arose because Mr Patel had ceased to be enrolled in a registered course, thereby failing to comply with condition 8202(2)(a) of his visa. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation, and Mr Patel had responded with explanations for his non-compliance.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether the Tribunal should exercise its discretion to cancel the visa. The Tribunal was required to consider the applicant's submissions regarding his divorce, serious health issues including Crohn's disease, academic difficulties, and his subsequent enrolment in a vocational hospitality course. The Tribunal also had regard to the Department's Procedures Advice Manual concerning visa cancellation powers.

The Tribunal found that the ground for cancellation under s 116(1)(b) was established due to the applicant's failure to maintain enrolment in a registered course. While acknowledging the applicant's compelling circumstances, including his health and personal difficulties, the Tribunal ultimately concluded that, on balance, the visa should be cancelled. The Tribunal affirmed the decision to cancel Mr Patel'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 12 August 2022, the Department of Home Affairs Character and Cancellation Branch sent the applicant an email regarding verification of his contact details and he responded on 12 August 2022. On 13 September 2022, the Department of Home Affairs (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 9 May 2021 and had therefore failed to comply with condition 8202(2)(a) of his visa. On 19 September 2022, the applicant responded to the NOICC via his migration agent and provided the following information: The grounds for cancellation are acknowledged however there are compelling reasons and events beyond the applicant’s control that lead to this situation. The applicant and his wife divorced on 1 October 2019 and this caused the applicant difficulties concentrating on his studies. The applicant was diagnosed with Crohn’s disease in India in December 2019. After this he had to take regular leave due to his health issues. On 31 May 2021, during his final placement to complete a Diploma in Nursing, he fainted. He then took a series of leaves due to his medical condition. He was offered a second placement starting on 26 July which he started but couldn’t continue due to his health issues. He was able to attend two weeks out of four weeks placement. Later, he requested the college to allow him to complete his study and a lab session was approved for February 2022 to revise his skills to attend next placement. His condition flared up again and he was admitted to emergency for a day and discharged with a sick certificate for a week. He was recommended by Royal Adelaide Hospital to book an appointment with a specialist but due to COVID-19 he couldn’t book an appointment with a specialist in Australia and he booked online with a specialist in India. On 22 March 2022, the applicant was notified the Academic Progression Committee had reviewed him as having unsatisfactory academic progress. Due to his health issues, he couldn’t appeal and his CoE was cancelled. He was going through a stressful situation with illness and medical treatments. He looked to return to study but due to his unsatisfactory record he could not get admission into the desired course. After this the applicant was taking care of his health and had the option to return to India but he had lost so much and had undergone a lot of stress and he felt ashamed to return without any qualification. He considered studying related courses in India but education there is not the practical approach and quality of education in Australia. As he couldn’t pursue the same course, he decided to enrol for a hospitality related course. On 16 August 2022 he was issued a CoE for a Certificate IV in Commercial Cookery and Diploma of Hospitality Management. Cancellation will have extreme consequences for the applicant psychologically. After having spent years in Australia it will be a matter of shame for him if he returns to India without any qualification. He will not be able achieve his objective to develop his own career pathway. The applicant wants to complete a course in Australia because he didn’t have an option to enrol in the same course. He did some research and has taken suggestion from family and friends to decide on the career he wants to pursue. With his current health he may not be able to work for the entire adulthood so he wants to work while he can and establish a business in future. He was inspired by the hospitality field in Australia and plans to introduce such cuisines in his own country. Therefore, he decided to enrol for certificate and diploma courses in hospitality which he believes will provide him the opportunity to learn a variety of topics quickly. His focus will remain on the Diploma in Hospitality Management.