Rapal (Migration) - [2019] AATA 5697

Rapal (Migration) [2019] AATA 5697 (2 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Naresh Rapal
CASE NUMBER:  1923625
HOME AFFAIRS REFERENCE(S):         BCC2019/2637198
MEMBER:D Triaca
DATE:2 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 02 December 2019 at 4:09pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – non-payment of fees – financial issues – sick relative – mental health issues – remained employed during breach – lack of evidence provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202
CASES

Paduano v Minister for Immigration and Multicultural Affairs (2005) 143 FCR 244
Project Blue Sky Inc v Australian Broadcasting Authority(1998) 194 CLR 355
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.The Applicant is a citizen of Nepal. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 19 August 2019 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).
2.The Applicant’s student visa was granted 8 May 2018 and permitted the applicant to reside in Australia for the purposes of full-time study. It was his second student visa, the first having been granted in 2016. The second visa was granted so that he could successfully complete a Master of Biotechnology and Business. He initially started studying at Mercury University in Sydney. He subsequently transferred to Holmes Institute.
3.The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to continue to be enrolled in a registered course of study.
4.The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

HEARING OF APPLICATION
5.The Tribunal convened a hearing to consider the merits of the application on 29 November 2019. The Applicant appeared before the Tribunal in person via video link from Sydney. The Applicant’s migration agent did not attend the hearing.
6.For the following reasons, the Tribunal has decided to affirm the decision to cancel the Applicant’s visa.

CONSIDERATION OF CLAIMS AND EVIDENCE
7.The Applicant’s visa was subject to a number of conditions as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’) when the visa was granted. In the present case, the issue is whether the Applicant has breached condition 8202 of the Regulations. If the Applicant has breached that condition, the visa may then be cancelled pursuant to s 116(1) of the Act.

Did the Applicant Breach Condition 8202?
8.Condition 8202(2)(a) of the Applicant’s visa required that he remain enrolled in a full-time registered course. In the delegate’s decision record, the delegate identified the period from 20 July 2018 to 19 August 2019 as the relevant period in which the Applicant…

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 Rapal (Migration)

Details

AGLC: Rapal (Migration) [2019] AATA 5697
Case: [2019] AATA 5697
Decision Date: 2 December 2019

CaseChat Overview and Summary

The applicant, Rapal, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel her Student (Temporary) (Class TU) visa, subclass 500. The cancellation was based on the applicant's failure to maintain enrolment in a registered course and her non-payment of course fees, which constituted a breach of her visa conditions.

The primary legal issue before the Federal Circuit Court was whether the delegate's decision to cancel the applicant's visa was affected by jurisdictional error. Specifically, the court considered whether the delegate had adequately considered the applicant's submissions regarding her financial difficulties, the illness of a relative, and her mental health issues, and whether these factors constituted "compelling and compassionate reasons" for the delegate to exercise discretion not to cancel the visa. The court also examined whether the applicant had provided sufficient evidence to support her claims.

The court affirmed the delegate's decision, finding that while the applicant had presented reasons for her breaches, she had failed to provide sufficient evidence to substantiate these claims. The delegate had considered the information provided by the applicant, but concluded that it did not amount to compelling and compassionate reasons to waive the mandatory cancellation. The court noted that the applicant remained employed during the period of her breaches, which was a factor the delegate was entitled to consider. The court found no jurisdictional error in the delegate's assessment of the evidence and the application of the relevant legislative provisions.

Orders