Ratsaeng (Migration) - [2019] AATA 4174

Ratsaeng (Migration) [2019] AATA 4174 (2 September 2019)
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DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Thanakritsadee Ratsaeng
CASE NUMBER:  1835078
HOME AFFAIRS REFERENCE(S):           BCC2018/4065718
MEMBER:Mark Bishop
DATE:2 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 02 September 2019 at 1:22pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – maintain enrolment in the higher education sector – consideration of discretion – no compelling need to remain in Australia – significant period of breach – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516
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 23 November 2018 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 was no longer enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas. 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 2 September 2019 to give evidence and present arguments. Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant provided a copy of the decision record to the Tribunal.
The applicant was represented in relation to the review by his registered migration agent.
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). 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?
s.116(1)(b) - non-compliance with conditions
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 was attached to the applicant’s visa. This condition requires a visa holder continue to satisfy the primary or secondary criteria for the grant of a visa.
Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the…

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 Ratsaeng (Migration)

Details

AGLC: Ratsaeng (Migration) [2019] AATA 4174
Case: [2019] AATA 4174
Decision Date: 2 September 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), was cancelled. The dispute centred on whether the grounds for cancellation were established and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to determine if the applicant had failed to comply with a condition of their visa, specifically condition 8516, which mandates that a visa holder must continue to satisfy the primary or secondary criteria for the grant of their visa. This condition, in the context of the applicant's visa, required them to maintain enrolment in a principal course of study within the higher education sector. The Tribunal also had to consider whether, having found a ground for cancellation, it was appropriate to exercise the discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal reasoned that the applicant had not complied with condition 8516 because records indicated they were no longer enrolled in a bachelor's or master's degree course, nor were they enrolled in a principal course of study as specified for Subclass 573 visas. This non-compliance constituted a ground for cancellation under section 116(1)(b) of the Migration Act 1958. In considering the exercise of discretion, the Tribunal found no compelling need for the applicant to remain in Australia. Despite the applicant's long period of residence and investment in education, they had a significant period of breach of their visa conditions and offered no compelling reasons to justify retaining the visa.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector 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). 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 policyDoes the ground for cancellation exist?s.116(1)(b) - non-compliance with conditions 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 was attached to the applicant’s visa. This condition requires a visa holder continue to satisfy the primary or secondary criteria for the grant of a 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, master’s 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 12/037. 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 12/037. The delegate made the following findings:·According to PRISMS the visa holder was no longer enrolled in a bachelor’s degree or master’s degree course;·According to PRISMS the visa holder was not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister made under the relevant instrument;·The visa holder no longer satisfied either subclauses 573.231 or 573.223(1A) and had not complied with condition 8516;

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.Mark BishopMember

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 power to cancel the visa should be exercised.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’.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 lived in Australia from 2002 until 2012. He then returned to Thailand for approximately three years. He returned to Australia in 2015 to study in the HE sector. The applicant did not work or study in Melbourne apart from a period of time whilst engaged with a course in Commercial Cookery. He lived with his sister in Melbourne from December 2018 until May 2019. She kicked him out of the house on account of the fact he owed her money. The applicant advised he was now living in Perth and had been there for 3 months. He is not working in Perth. His parents remit funds to him in Australia. He lives with his aunty in Perth. He is not currently studying or working in Perth. His girlfriend in Melbourne does not visit him in Perth. The applicant is 32 years of age. The applicant is divorced. If he returned to Thailand he may not be able to return to Australia and hence not see his sister in Australia. The applicant advised his mother runs his business in Thailand and her management of the business is satisfactory. His mother and his employees manage his business well. He does not have any complaints. The applicant advised he had been involved in a motorcycle accident in July 2018. He was not really hurt at all. He does not have any residual medical problems or issues. He has no mental problems. The Tribunal asked the applicant to address the issue of compelling need. The applicant advised his parents had invested a lot of money in his education in Australia and it would be unfortunate if he had to return home prior to completing his studies. The Tribunal is aware the applicant has spent nearly all his adult life in Australia. He has been exposed to the education system to university level. He is aware of the demands made of students in this country. He advised he was not aware conditions attached to his visa required him to maintain enrolment in the HE sector. The Tribunal asked the applicant on several occasions to outline his compelling need to travel to or remain in Australia. He advised of family but also advised his sister kicked him out of Melbourne. He advised of a girlfriend in Melbourne but did not see her and she did not visit him in Perth. He advised he did not wish to marry her at this time. He advised his mother sent him a large amount of money to live in Perth. He advised he owned a successful business in Thailand and it was run well in his absence by his mother and the employees. He did not advise of any compelling need to need to travel to or remain in AustraliaThe extent of compliance with visa conditions