Raza (Migration) - [2019] AATA 1259

Raza (Migration) [2019] AATA 1259 (3 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ali Raza
CASE NUMBER:  1711328
HOME AFFAIRS REFERENCE(S):           BCC2017/909483
MEMBER:Stephen Witts
DATE:3 April 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 03 April 2019 at 1:44pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – genuine student – academic progression – not enrolled in higher education sector level – study gap of in excess of nine months – consideration of discretion – father’s illness – financial difficulties – responsibility to be aware of study responsibilities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
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 22 May 2017 made by a delegate of the Minister for Immigration and Border Protection 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)(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 3 April 2019 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
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)(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?
s.116(1)(fa) - not a genuine student
A visa may be cancelled under s.116(1)(fa)(i) if the Minister 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 section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet…

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 Raza (Migration)

Details

AGLC: Raza (Migration) [2019] AATA 1259
Case: [2019] AATA 1259
Decision Date: 3 April 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), held by the applicant, Raza. The Minister had cancelled the visa on the ground that the applicant was not a genuine student. The applicant sought review of this decision.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to affirm the cancellation. Specifically, the Tribunal had to consider if the applicant was a genuine student, having regard to prescribed matters including academic progression and any study gaps.

The Tribunal found that the ground for cancellation was established. The applicant had a history of cancelled enrolments in his Bachelor of Business (Accounting) course due to non-payment of fees, with the last confirmed date of study being in June 2016. This resulted in a study gap of over nine months. While the applicant submitted that his father's illness and resulting financial difficulties in his home country prevented him from paying his fees and caused the study gap, the Tribunal noted that under regulation 2.43(1D)(c) of the Migration Regulations 1994, compassionate or compelling circumstances are only a relevant consideration if the Minister is satisfied that those circumstances have ceased to exist. The Tribunal was not satisfied that this condition was met.

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

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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?s.116(1)(fa) - not a genuine student A visa may be cancelled under s.116(1)(fa)(i) if the Minister 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 section 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 decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision. According to the delegate’s decision record dated 22 May 2017, provided to the Tribunal by the applicant, the applicant was granted a Student (Temporary) Higher Education Sector class 573) visa on 1 May 2014 to study a Bachelor of Business (Management). According to the delegate the applicant has been enrolled in the following courses here in Australia:a)Bachelor of Business (Accounting). This enrolment was cancelled due to non-payment of fees on 31 July 2015b)Bachelor of Business (Accounting). This enrolment was cancelled due to non-payment of fees on 16 October 2015c)Bachelor of Business (Accounting). This enrolment was cancelled due to non-payment of fees on 24 June 2016. The last confirmed the date of study in this course was 5 June 2016. According to the delegate’s decision record as at 22 May 2017 the applicant held enrolments in a Certificate IV in Commercial Cookery which commenced on 27 March 2017 and was due to complete on 23 September 2017 and a Diploma of Hospitality Management which commenced on 19 November 2018 and was due to finish on 19 May 2019.

Decision

Reasons for decision

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 Subclass 573 Higher Education Sector visa.Stephen WittsMemberATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994…(1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.(1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:(a)because of the conduct of the holder; or(b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or(c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or(d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) 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’. The Tribunal has considered any submissions provided Department, and to the Tribunal, and also the evidence taken at the Tribunal.·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 stated that he has his parents and five brothers back in his home country and that he is the oldest brother. He stated that his family own a shop, properties, and some agricultural land. He stated that since his arrival here in 2014 he has not been back to his home country. The applicant stated that he completed his high school level education in 2013 and studied for and successfully completed a Diploma of Business Management back in his home country. He stated that he then decided that he wished to come to Australia as an international student to study a Bachelor of Business (Management) as that would provide him with an international business degree. The applicant stated that he studied for his Bachelor of Business (Management) for approximately one term before deciding that he did not want to do this particular kind of business course and so therefore decided to enrol in a Bachelor of Business (Accounting) as accounting would be a more appropriate course of study for him. He then stated that his family developed financial problems because of his father’s illness and that therefore his enrolments in a Bachelor of Business (Accounting) were therefore cancelled on three occasions in July and October 2015 and June 2016. The applicant stated that due to his family’s financial circumstances during this time he was unable to continue his study. He then stated that he subsequently enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management but could not continue with these courses as his visa was cancelled. The applicant provided evidence to the Tribunal indicating that his father was ill during this period of time, that is during the cancellations for his accounting degree, in particular between March 2015 and November 2016 with the applicant providing evidence that his father was suffering from an illness and consequential business complications associated with his inability to work that meant he was unable to send enough money to his son to pay for his student fees. The applicant stated that he was unable to proceed with his studies for that reason and that was why there was also a nine-month study gap from June 2016. The applicant stated that he asked the educational provider for instalment plans to assist him in being able to maintain his study but was unable to be placed on such a plan.