Sabin (Migration) - [2020] AATA 723

Sabin (Migration) [2020] AATA 723 (16 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Md Ana Sabin
CASE NUMBER:  1707553
HOME AFFAIRS REFERENCE(S):          BCC2017/716717
MEMBER:Lynda Young
DATE:16 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Statement made on 16 March 2020 at 6:03am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – no appearance by applicant at hearings – claim of medical grounds for non-appearance, but no documentation provided – father’s illness – applicant’s physical and mental health – no approach to education provider – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), (3), 119, 362B, 379A(5),
Migration Regulations 1994 (Cth), Schedule 2, Schedule 8, condition 8202(2)(a)
CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 4 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Class TU Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The applicant’s visa, granted on 12 May 2015, was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations), requiring the applicant to be enrolled in a registered course of study.
On 17 March 2017, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) under s.119 of the Act, on the basis it appeared he had not complied with visa condition 8202(2)(a) as, on evidence obtained from the Provider Registration and International Student Management System (PRISMS), the applicant had not been enrolled in a registered course of study since 15 August 2016. The applicant responded to the NOICC on 31 March 2017 (NOICC Response).
On 4 April 2017, the delegate cancelled the visa under s.116(1)(b) of the Act on the basis the applicant, in breach of visa condition 8202(2)(a), had not been enrolled in a registered course of study since 15 August 2016, and the grounds in favour of cancellation outweighed the grounds against cancellation.
The applicant applied to the Tribunal for review of the decision on 8 April 2017, and attached to his application, a copy of the NOICC and the Decision Record (application). The issues in the present case are whether the ground for cancellation in s.116(1)(b) of the Act is made out, and if so, whether the visa should be cancelled.
By letter emailed to the applicant on 13 January 2020 (hearing invitation), the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in his case at a hearing on 31 January 2020 at 10:30AM (scheduled hearing). The hearing invitation advised the applicant the Tribunal may, if he did not attend the scheduled hearing and an adjournment was not granted,…

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 Sabin (Migration)

Details

AGLC: Sabin (Migration) [2020] AATA 723
Case: [2020] AATA 723
Decision Date: 16 March 2020

CaseChat Overview and Summary

This matter concerned an appeal by a student visa holder against the cancellation of their visa. The applicant failed to enrol in a registered course, did not appear at hearings before the Tribunal, and provided no documentation to support claims of medical grounds for their non-appearance or their father's illness. The applicant also failed to engage with their education provider.

The Tribunal was required to determine whether the Minister's decision to cancel the applicant's Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), was justified. Specifically, the Tribunal had to consider if the applicant had breached a condition of their visa, namely condition 8202, which requires enrolment in a registered course and satisfactory course progress and attendance. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to various factors including the applicant's circumstances, the purpose of the visa, and any potential international obligations.

The Tribunal reasoned that the applicant had clearly breached condition 8202 by failing to enrol in a registered course for over seven months prior to the cancellation. The Tribunal found that the applicant had not demonstrated they were a genuine student interested in completing their studies, particularly given their lack of engagement with the Tribunal and the education provider. While the Tribunal considered factors such as non-refoulement obligations, it found no evidence to suggest that cancellation would lead to a breach of these obligations, as the applicant had provided no information about potential harm upon return to their home country. The Tribunal also noted that the applicant's visa was not a permanent one, and therefore considerations regarding strong ties to Australia were not applicable.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that the applicant had not satisfactorily demonstrated they were a genuine student deserving of having their visa reinstated.

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 EVIDENCEISSUES Under s.116 of the Act, the Minister may cancel a visa if she or he 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)(b). Section 116(1)(b) provides for cancellation of a visa where ‘its holder has not complied with a condition of the visa.’ Visa conditions for each subclass are identified in the relevant part of Schedule 2 to the Regulations, and described in Schedule 8 to the Regulations. In this case, condition 8202 was imposed on the applicant’s student visa. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires the applicant:a. be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)b. has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), andc. has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b). If satisfied the ground for cancellation in s.116(1)(b) is made out then, as the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa, having regard to matters specified in the Act or Regulations that are required to be considered and all information relevant to the exercise of the discretion in the circumstances of the case, including matters raised by the applicant and matters of government policy. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. Matters to which the Tribunal has regard in considering whether to exercise its discretion to cancel the applicant’s visa include matters raised by the applicant and the matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, including:a. 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; b. the extent of compliance with visa conditions; c. degree of hardship that may be caused (financial, psychological, emotional or other hardship); d. circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control; e. past and present behaviour of the visa holder towards the Department; f. whether there would be consequential cancellations under s.140 of the Act; g. whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention; h. whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation; i. if it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia; j. any other relevant matters.

Decision

Reasons for decision

The Tribunal concludes the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Lynda YoungMemberATTACHMENTMigration Regulations 1994…Schedule 88202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).(2)A holder meets the requirements of this subclause if:(a) the holder is enrolled in a registered course; or(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.(3)A holder meets the requirements of this subclause if neither of the following applies:(a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:(i)section 19 of the Education Services for Overseas Students Act 2000; and(ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;(b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:(i)section 19 of the Education Services for Overseas Students Act 2000; and(ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.

Ratio Decidendi

Legal Principle Established

The Tribunal gives this consideration weight in favour of not cancelling the visa. Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments, which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). Non-refoulement obligations are not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind. Given the applicant did not attend the hearing and has not provided any information or evidence to either the Department or the Tribunal that he may be caused any problems upon return to his home country, the Tribunal cannot be satisfied there are any matters that would attract non-refoulement obligations. The Tribunal finds, in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. There is no evidence before the Tribunal that cancellation of the applicant's visa would result in Australia breaching any obligations regarding the best interests of children. The Tribunal considers these factors weigh neither in favour of nor against cancellation. If the applicant’s visa is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia The applicant’s visa is a not a permanent visa.Any other relevant matters The evidence before the Tribunal does not disclose any other relevant matters. CONCLUSION In circumstances of the applicant’s failure to take any active role in the Tribunal’s review process or provide the Tribunal with any information or supporting material additional to that provided in response to the Department’s NOICC and failure to be enrolled for more than seven months pre-cancellation, when neither the purpose for which his visa was granted or the purpose of his travel to and stay in Australia could be achieved without enrolment, the applicant has not satisfactorily demonstrated he is a genuine student who should have his visa reinstated because he is genuinely interested in completing his studies.