Phan (Migration) - [2019] AATA 6296

Phan (Migration) [2019] AATA 6296 (15 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Van Nam Phan
CASE NUMBER:  1901264
HOME AFFAIRS REFERENCE(S):          BCC2018/4229347
MEMBER:David Thompson
DATE:15 September 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 15 September 2019 at 10:44pm
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –applicant did not comply with condition 8516– applicant ceased study – enrolment had been cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 48, 116, 189, 198
Migration Regulations 1994 (Cth), cls 573.111, 573.112, 573.231,rr 1.40A, 2.02
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 18 January 2019 made by a delegate of the Minister for Home Affairs 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 had been non-compliant with a condition of his visa, namely, condition 8516 requiring him to continue to satisfy the primary and secondary criteria for the grant 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.
The applicant appeared before the Tribunal on 17 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
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
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.
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 attached to the applicant’s visa.
Condition 8516 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 met cl.573.231 if they were not an eligible higher degree…

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 Phan (Migration)

Details

AGLC: Phan (Migration) [2019] AATA 6296
Case: [2019] AATA 6296
Decision Date: 15 September 2019

CaseChat Overview and Summary

This matter concerned an application by Mr Phan for review of a decision to cancel his Subclass 573 Higher Education Sector visa. The applicant had been granted the visa on 5 June 2015, with a condition requiring him to maintain enrolment in a course of study. The Department of Home Affairs had cancelled the visa on the basis that the applicant had failed to comply with this condition, specifically condition 8516, by ceasing his studies and having his enrolment cancelled. The Administrative Appeals Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to affirm the cancellation.

The Tribunal was required to consider whether the applicant had breached condition 8516 of his visa, which mandates that a visa holder must continue to satisfy the criteria for the grant of their visa. For a Subclass 573 visa, this included maintaining enrolment in a principal course of study with an eligible education provider. The applicant’s enrolment in an English course at Perth International College of English had been cancelled. The Tribunal also had to consider whether to exercise its discretion to affirm the cancellation, having regard to all relevant circumstances, including government policy and the applicant's explanation for the non-compliance.

The Tribunal found that the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out, as the applicant had failed to maintain enrolment, thereby breaching condition 8516. The applicant provided several explanations for his cessation of studies, including illness due to cold weather and family tragedies causing stress, leading to non-payment of fees. However, the Tribunal found inconsistencies in his accounts, particularly regarding the provision of a medical certificate and the reasons for his non-attendance. The Tribunal gave significant weight to the fact that the applicant had been in breach of his visa condition for over three years, deeming this a considerable period of non-compliance that weighed heavily against him.

Ultimately, the Tribunal concluded that the circumstances as a whole warranted the affirmation of the decision to cancel the applicant'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

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 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.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 attached to the applicant’s visa. Condition 8516 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 met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student. 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, masters 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. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 15/003. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type 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. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 14/015. The applicant was granted a Subclass 573 Higher Education Sector visa on 5 June 2015. At that time, the applicant was enrolled in, and held a Confirmation of Enrolment (CoE) for, a Bachelor of Business at Murdoch University. The applicant was also enrolled in an English course at Perth International College of English, which he was to complete before commencing studies for his Bachelor of Business degree. The applicant gave evidence at hearing that after 4 months of studying English he became ill, and after consulting a doctor was advised to take a month off studying. He received a medical certificate to that effect. The applicant was asked at hearing about the nature of his illness. He stated that he was “allergic” to the cold weather in Australia, having come here from Vietnamese summer.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.David ThompsonMember

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 visa should be cancelled.Consideration of discretion 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’. As at the date of cancelation of his visa, the applicant had been in breach of condition 8156 on his visa for a little over 3 years. This is a very considerable period of non-compliance, and weighs heavily against the applicant and in favour of affirming the delegate’s decision. The applicant gave evidence at hearing as to how the breach arose. The applicant’s account is summarised at paragraphs 11 and 12 above. At hearing, the applicant was asked precisely why his CoE for his English course had been cancelled. He was unable to explain this with any degree of clarity, even allowing for the fact that the hearing was conducted with the assistance of an interpreter. His evidence was that he thought that his CoEs had been cancelled because he had not paid all his course fees on time, although he had paid a first instalment of $1,500. He stated that he had tried to speak to his college in an attempt to have his enrolment reinstated, but that the college would not agree. Once again, he was not clear as to the college’s reasons. The Tribunal notes that the applicant provided a response dated 10 January 2019 to the Department’s Notice of Intention to Consider Cancellation (NOICC). In that response, the applicant stated that while he was studying his initial English course his family suffered a series of tragedies, and that this had caused him extreme stress and had resulted in his falling behind in his course attendance. The applicant’s statement treats non-payment of fees as the reason his CoE was cancelled. In it, he says that he had paid a first instalment of $1000 towards his fees and had asked permission to pay the balance in the following week, but that on the day he was due to make payment he had a high fever and could not attend at his college to make payment. He had planned to attend the next day to make payment, but his CoE was cancelled without any final reminder from his college. At hearing, the Tribunal asked the applicant about the family tragedies he had mentioned in his response to the NOICC. He stated that he did not remember mentioning any family tragedies, but said that his brother had been involved in a serious accident, and had spent a month in hospital in a deep coma. The explanation given in the applicant’s response to the NOICC is consistent with his evidence at hearing to the effect that the grounds upon which his CoEs were cancelled was non-payment of fees. However, his evidence at hearing was inconsistent with his response to the Department’s NOICC in that the response says nothing about the applicant obtaining a medical certificate. Rather, it attributes his non-attendance to severe stress. The applicant did not provide any documentary evidence corroborating the evidence he gave on this point at hearing, such as a copy of his medical certificate. The Tribunal does not that evidence, and finds the account given in his response to the Department’s NOICC to be the true reason for his non-attendance.