Rizvi (Migration) - [2019] AATA 5722

Rizvi (Migration) [2019] AATA 5722 (20 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Syed Aamir Shabbir Rizvi
CASE NUMBER:  1809487
HOME AFFAIRS REFERENCE(S):          BCC2018/167768
MEMBER:D. Triaca
DATE:20 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Statement made on 20 December 2019 at 3:34pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – ceased enrolment – grievances against college – COE cancelled by college – no hardship identified – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

CASES
Boettcher v Driscoll (2014) SASC
de Angelis v De Angelis [2003] VSC 432
Liu v MIMIA (2003) FCA 1170
Paduano v MIMIA (2005) 143 FCR 204
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The Applicant is a citizen of Pakistan. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 3 April 2018 cancelling his Subclass 573 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had failed to comply with visa condition 8202(2)(a) which required him to continue to be enrolled in a registered course of study (delegate’s decision).
The applicant’s visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 3 April 2018, the delegate decided to cancel the visa held by the applicant, having found that the applicant did not comply with condition 8202 of his Visa.
On 5 April 2018, the applicant sought a review of the delegate’s decision at the Tribunal and attached a copy of that decision with his application.
By letter dated 11 April 2019, the Tribunal wrote to the applicant, inviting him to attend a hearing on 30 April 2019. On 18 April 2019, the applicant responded to the Tribunal’s invitation and filed detailed written submissions in support of his application.
The applicant appeared before the Tribunal on 30 April 2019 to give evidence and present arguments.
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 applicant’s visa was subject to a number of conditions prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’). 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.
If satisfied that the ground…

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.

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Details

AGLC: Rizvi (Migration) [2019] AATA 5722
Case: [2019] AATA 5722
Decision Date: 20 December 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the decision to cancel the Subclass 500 (Student) visa granted to Mr Rizvi, a citizen of Pakistan. The dispute arose from the applicant's alleged breach of condition 8202 of the Migration Regulations 1994, which requires a student visa holder to remain enrolled in a registered course. The applicant had ceased enrolment in a registered course for approximately eight months, a period confirmed by the applicant himself and evidenced by data from the Provider Registration and International Student Management System (PRISMS).

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(a) of his visa, and if so, whether the decision to cancel his visa should be affirmed. The Tribunal was required to determine if the ground for cancellation under s 116(1) of the Migration Act 1958 (Cth) was established, and then to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal reasoned that the applicant had indeed breached condition 8202(2)(a) by remaining unenrolled for approximately eight months, as supported by PRISMS data and the applicant's own admission. Having established the ground for cancellation, the Tribunal then considered its discretionary power. It acknowledged the applicant's stated intentions to study in Australia and his past difficulties with course discontinuations, but found these factors carried little weight given the breach. Applying the ordinary meaning of "compelling need" as established in case law, the Tribunal concluded that the applicant had not demonstrated a compelling need to remain in Australia.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa, finding that on balance, and considering all circumstances, cancellation was the appropriate outcome.

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. The applicant’s visa was subject to a number of conditions prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’). 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. 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.Did the Applicant Breach Condition 8202? Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a registered course.The requirements of condition 8202(2)(a) do not allow the visa holder to cease to be enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 11 July 2017 to 3 April 2018 as the relevant period in which the Applicant was not enrolled in a registered course. This amounted to approximately 8 months during which the Applicant was in continuous breach of the visa (the relevant period). The delegate’s finding in this respect was based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’). It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. The PRISMS database is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. In particular, and of relevance to the present case, it may be used by course providers to report that they have cancelled a particular student’s COE in a course for which they had previously enrolled and the reasons for doing so. The Department of Home Affairs wrote to the Applicant on 14 March 2018, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). That notice set out particulars of the alleged breach by the Applicant of condition 8202. The Applicant was invited to comment on these allegations before the Department moved to cancel his visa. The applicant responded to the NOICC on 15 March 2018 and did not suggest he was enrolled during the relevant period. The applicant is a 38 year old citizen of Pakistan. He was granted a Subclass 500 Student Visa on 2 December 2016. In his oral evidence before the Tribunal, the applicant agreed and confirmed that he had not been enrolled in a registered course for the period of approximately 8 months identified in the delegate’s decision.

Decision

Reasons for decision

The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. 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 Subclass 500 (Student) visa.D. TriacaMember

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1) 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 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. He arrived in Australia in 2014 intending to study a Master of International Community Development at Victoria University. He was unable to undertake that course of study for reasons outside his control because the University discontinued that course. He returned to his home country and the University refunded his fees. He returned to Pakistan, was unable to resume his previous employment and in those circumstances returned to Australia in 2016 on a Student Visa with the intention of studying Early Childhood Education and Care. It is worth noting that the applicant was granted this visa on the basis he was enrolled in a registered course of study. He states he completed a Certificate III in Early Childhood Education and Care and started a Diploma in Early Childhood Education and Care at Technical Education Australia (TEA). The applicant’s evidence was that if possible he intends to remain in Australia and return to study to fulfil his academic goals. Having regard to the applicant’s evidence the Tribunal accepts that the applicant may have travelled to Australia intending to study and he intends studying in Australia in the future. However, given his failing to continue to be enrolled as set out below, the Tribunal gives this only little weight towards the visa not being cancelled. On the evidence, the Tribunal does not consider the applicant has advanced a compelling need to travel to and stay in Australia. The Act or the PAM3 do not define the expression “compelling need” and there is nothing in the Act or PAM3 to suggest that the Parliament intended the phase to be given anything other than its ordinary and natural meaning. The Federal Court has held that “compelling” in its wide, ordinary meaning means “forceful”, and forceful reasons for an absence may involve physical, legal or moral necessity or may, by reason of their forcefulness be convincing. Paduano v MIMIA (2005) 143 FCR 204 [31]-[47]. The reasons need not be confined to those incorporating an involuntary element, involving circumstances beyond a person’s control, involving physical or legal necessity, or circumstances such as those referred to in the Department’s guidelines. Need is a relative concept: de Angelis v De Angelis [2003] VSC 432 at [45]; It is different from want. “In need of“ plainly means more than merely “want” but falls far short of “cannot survive without out.”:R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808. “Need” and “want” are not interchangeable. The difference between “need” and “want” is significant: Boettcher v Driscoll (2014) SASC at 86.