Ram (Migration) - [2024] AATA 2190

Ram (Migration) [2024] AATA 2190 (17 June 2024)
ECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sunyal Dharwadkar Ram
REPRESENTATIVE:  Mr JUJHAR BAJWA (MARN: 0742209)
CASE NUMBER:  2211771
HOME AFFAIRS REFERENCE(S):          BCC2022/2176839
MEMBER:Rachel Westaway
DATE:17 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 17 June 2024 at 3:19pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – closure of business – multiple course cancellations – dispute with college – separation from wife – financial hardship – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 189, 198
Migration Regulations 1994, Schedule 8, Condition 8202
CASES
Wan v MIMA (2001) 107 FCR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 9 August 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 on the basis that the applicant was not enrolled in a full-time registered course of study. 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 15 August 2023 at 1:00pm to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
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.
Background
The applicant is a 38-year-old male from Fiji.
The applicant was granted a TU-500 visa on 23 April 2020.
Tribunal Application
The applicant lodged their application for review on 13 August 2022. They provided the Department of Home Affairs decision record and notification letter, Fijian Passport along with their application for review.
On 8 August the applicant submitted an email which entailed a written document addressing the cancelation of his visa.
Department of Home Affairs Application
On 13 July 2022 the Department of Home Affairs sent a Notice of Intention to Consider Cancellation (NOICC) letter to the applicant.
On 25 July 2022, the visa holder’s migration agent provided a response via email. This response contained the following documents:
·A copy of the applicant’s passport.
·A written submission dated 25 July 2022, from the applicant.
The written…

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 Ram (Migration)

Details

AGLC: Ram (Migration) [2024] AATA 2190
Case: [2024] AATA 2190
Decision Date: 17 June 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of a student visa holder from Fiji whose visa was cancelled by the Department of Home Affairs. The applicant sought review of this decision.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994 by failing to maintain enrolment in a registered full-time course of study. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had breached condition 8202 as he had not been enrolled in a registered course since May 2021, a period of fourteen months by the time the Notice of Intention to Consider Cancellation was issued. While the applicant provided reasons for his non-compliance, including personal difficulties, marital breakdown, financial hardship related to selling a business, and issues with his education provider, the Tribunal determined that these circumstances did not outweigh the significant breach of the visa conditions. The Tribunal noted that the applicant's non-engagement in study meant he was not fulfilling the purpose for which his student visa was granted.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 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.Background The applicant is a 38-year-old male from Fiji. The applicant was granted a TU-500 visa on 23 April 2020.Tribunal Application The applicant lodged their application for review on 13 August 2022. They provided the Department of Home Affairs decision record and notification letter, Fijian Passport along with their application for review. On 8 August the applicant submitted an email which entailed a written document addressing the cancelation of his visa.Department of Home Affairs Application On 13 July 2022 the Department of Home Affairs sent a Notice of Intention to Consider Cancellation (NOICC) letter to the applicant. On 25 July 2022, the visa holder’s migration agent provided a response via email. This response contained the following documents: ·A copy of the applicant’s passport. ·A written submission dated 25 July 2022, from the applicant. The written submission contained the following images: ·images of a ‘Working with Children’ blue card in the applicant’s name.·A marriage invitation to Anil Kumar Ram and Prakash Wati Ram inviting them to the wedding of the applicant and Sonam Shivani Chand. ·A marriage certificate issued by the Suva Registry for the marriage of the applicant and Sonam Shivani Chand on 24 September 2012. ·A copy of an Application for Dissolution of the marriage between the applicant and Sonam Shivani Chand, lodged by Sonam Shivani Chand at Nausori Family Court on 21 October 2021. ·A certificate of business registration for the business “Sunrize Officeworks” registered on 07 April 2010. ·Email correspondence, including an Authority to Act form and a statutory declaration with regards to the sale of the applicant’s business (Sunrize Officeworks) from Joshika Prasad on 11 February 2021. ·An email to the applicant from Pacific Training Group on 19 May 2021 requesting that the visa holder obtain release from his previous enrolment. ·A student agreement from the Pacific Training Group with what appears to be the applicant’s electronic signature on 12 May 2021. ·A receipt from Pacific Training Group showing a payment of AUD1,000 on 11 May 2021. ·Emails between the visa holder and a staff member (Mel Mao) from Frontier Education (email address melm@frontiereducation.edu.au) on 04 December 2020 regarding access to academic systems and assignment submission. On 9 August 2022 the Department notified the applicant that his visa was being cancelled. The Department found that according to PRISMS, the applicant had not been enrolled in a full-time registered course of study since 03 May 2021. The applicant did not provide any evidence to show that he was enrolled in any other full time registered course of study in Australia. Furthermore, the applicant stated in his response that he had not complied with the conditions of his student visa.

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.Rachel WestawaySenior MemberATTACHMENTMigration 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

The Tribunal asked the applicant if he believes he had completed his units and he stated he was not certain although he claims he had paid for them. He claims he tried to complete the course work to make up 80% and he stated that he believed the college should have helped him which the Tribunal noted that did by giving him extra time to complete his work. He stated that these assessments were not marked and he was left in limbo.Consideration of the discretion to cancel the visa 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 Procedural Instruction ‘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 The applicant was granted a student visa to study in Australia. The applicant was not enrolled in a registered course since 3 May 2021. At the time the NOICC was issued the applicant had not been enrolled in a registered course for fourteen months. He was granted a student visa on 23 April 2020 and enrolled in Certificate IV in Business studies (part of a package course) at Frontier Education located in Brisbane City and that due to personal problems between his ex-wife including the family members he remained enrolled and submitted a few assessments out of time but did not go on to complete his diploma of Business. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia since 3 May 2021. The applicant attended the hearing and provided a written submission and a response to the NOICC. He outlined the reasons why he struggled with his studies. It stated that he had issues with family members and his relationship with his wife had dissolved and he felt threatened by her new partner and the business he had established in Fiji that he was selling had caused him financial distress and led to his inability to pay his course fees. He also stated that the course provider was unhelpful and did not provide clear and up to date information pertaining to his units and due dates for assessments and he lacked support from his migration agent and wanted to transfer to the Gold Coast. The applicant spent some time telling the Tribunal about his fears of his ex-wife’s boyfriend and why he is afraid to return to Fiji. Whilst this is noted, protection from a person is not the purpose of a student visa and the applicant may wish to seek further advice pertaining to this. Whilst the Tribunal has considered the issues raised by the applicant which outlined the difficulties he faced in Australia and with his course provider as well as his broken marriage and the fear of returning to Fiji, the applicant’s non-engagement in the study for which his visa was granted, and the absence of any request to defer his studies weighs in favour of visa cancellation.the extent of compliance with visa conditions