Rana (Migration) - [2019] AATA 1616

Rana (Migration) [2019] AATA 1616 (17 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muaaz Ahmed Khan Rana
CASE NUMBER:  1700060
HOME AFFAIRS REFERENCE(S):           BCC2016/3743846
MEMBER:Joseph Lindsay
DATE:17 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa.

Statement made on 17 January 2019 at 1:50pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not genuine student – enrolments in a number of courses – did not complete any courses – incorrect advice – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 119, 140
Migration Regulations 1994 (Cth), r 2.43

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 29 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (the TU573 visa) under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant was not a genuine student. 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 6 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted without the assistance of an interpreter.
The applicant was represented in relation to the review by his registered migration agent. However, the applicant’s agent 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
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)(fa)(i). 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)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.
In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in s.116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine…

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 Rana (Migration)

Details

AGLC: Rana (Migration) [2019] AATA 1616
Case: [2019] AATA 1616
Decision Date: 17 January 2019

CaseChat Overview and Summary

This matter concerned an appeal by a Student (Temporary) (Class TU) visa holder against the cancellation of his visa. The applicant had been granted a Subclass 573 Higher Education Sector visa. The Minister’s delegate had cancelled the visa on the grounds that the applicant was not a genuine student. The Administrative Appeals Tribunal was required to review this decision.

The Tribunal was tasked with determining whether the ground for cancellation existed, specifically whether the applicant was, or was likely to be, a genuine student, as contemplated by section 116(1)(fa)(i) of the Migration Act 1958 (Cth). The Tribunal also had to consider whether, having found a ground for cancellation, it should exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that the applicant was not a genuine student. This conclusion was based on the applicant's Provider Registration and International Student Management System (PRISMS) record, which indicated that since being granted his most recent student visa on 30 April 2015, he had not completed any courses. Despite multiple enrolments in various courses, including a Bachelor of Business, Certificate III in Commercial Cookery, and a Diploma of Hospitality, the applicant had not completed any of them. The Tribunal noted that the applicant had been reported for unsatisfactory course progress and had not maintained enrolment in a registered course at the Higher Education Sector level for significant periods. The Tribunal affirmed 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)(fa)(i). 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)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in s.116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]). For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A) of the Act and r.2.43(1C) and (1D) of the Migration Regulations 1994. The prescribed matters are set out in the attachment to this decision. In the hearing, the applicant claimed he was a genuine student. The Tribunal has considered whether the available evidence supports the applicant’s claim that he is a genuine student. During the hearing, the Tribunal discussed the applicant’s Provider Registration and International Student Management System (PRISMS) record with him. In the course of the hearing, the applicant agreed that the information about his student history detailed in the PRISMS record was correct. Accordingly, the Tribunal finds that there is no information in the PRISMS record that is adverse to the applicant. The PRISMS record shows that since the applicant was granted his most recent student visa on 30 April 2015, the applicant has not completed a single course. The PRISMS record shows that the applicant had enrolments in a number of courses including a Bachelor of Business, a Certificate III in Commercial Cookery, a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Commercial Cookery, and a Diploma of Hospitality. The applicant agreed that he did not complete any of these courses.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Accordingly, the Tribunal finds that the applicant is not, or is likely not to be, a genuine student and that there are grounds for cancellation of his student visa under s. 116(1)(fa)(i) of the Act. 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 Procedures Advice Manual (PAM3), ‘General visa cancellation powers’.Circumstances in which ground of cancellation arose The Tribunal then referred to the delegate’s decision that refers to a range of information pertaining to the circumstances in which the ground for cancellation arose. The Tribunal put this information to the applicant:a.On 30 April 2015, the applicant was granted his current TU573 visa valid until 15 March 2019, on the basis of undertaking Certificates III and IV in Commercial Cookery, a Diploma of Hospitality and a Bachelor of Business at Acknowledge Education Pty Ltd.b.Based on evidence available in PRISMS, he commenced the Certificate III in Commercial Cookery course on 18 May 2015 with his last day of study for this course recorded as 28 August 2015. The applicant did not commence any of the other courses included in the above package and on 25 November 2015, enrolled in a Certificate III in Light Vehicle Mechanical Technology at Technical Education Australia Pty Ltd. c. PRISMS indicates the commencement and conclusion dates for the Certificate III in Light Vehicle Mechanical Technology were 2 December 2015 and 4 January 2017. On 10 November 2016, the applicant was reported by the education provider for unsatisfactory course progress. The applicant’s enrolment for this course was cancelled on 10 November 2016 with his last day of study recorded as 28 August 2016.d.PRISMS also indicates the applicant ceased to be enrolled in the Bachelor of Business on 8 April 2016 and that the applicant has not held enrolment in a course of study specified for TU573 visas since that date.e.Since being issued the Notice of Intention to Consider Cancellation (NOICC) on 5 December 2016, PRISMS indicates the applicant obtained enrolment and was then studying a Certificate III in Light Vehicle Mechanical Technology at Technical Education Australia Pty Ltd, commencing on 6 December 2016 to 20 June 2017. On 15 December 2016, the applicant also obtained enrolment to study a Bachelor of Business at Australia School of Management, due to commence on 7 August 2017 until 16 June 2020.f.Information before the Department indicates the applicant arrived in Australia on 12 February 2012 on his previous TU573 visa. The applicant has travelled offshore once between 18 January 2014 and 11 March 2014. g.The applicant’s study history indicates that he was granted his current TU573 visa on the basis of undertaking Certificates III and IV in Commercial Cookery, a Diploma of Hospitality and a Bachelor of Business. PRISMS indicates the applicant only commenced studying the Certificate III in Commercial Cookery but never managed to complete it. The applicant also did not commence any of the other courses included in the above mentioned package.h.The applicant’s study history indicates that he did not undertake studies in a registered course from 28 August 2016 to 6 December 2016 and did not maintain enrolment in a registered course at the Higher Education Sector level from 8 April 2016 until the commencement of his current course in Certificate III in Light Vehicle Mechanical Technology on 6 December 2016.i.PRISMS indicates that since arriving onshore on 12 February 2012 and having held two TU573 visas, the applicant has not completed any Higher Education Sector level course. j.PRISMS indicates that for each of his TU573 visas, the applicant has deviated from his original study plan. The applicant has also been reported by his education provider on 10 November 2016 for unsatisfactory course progress.k.The applicant completed Certificate IV in Business, Diploma and Advanced Diploma of Management in October 2014. However, since this time, he has failed to complete any course of study on his current student visa, demonstrating a lack of academic progression over a significant period of time.