Sandeep (Migration) - [2020] AATA 144

Sandeep (Migration) [2020] AATA 144 (29 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sandeep
CASE NUMBER:  1804471
HOME AFFAIRS REFERENCE(S):          BCC2017/4262809
MEMBER:Wendy Banfield
DATE:29 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 29 January 2020 at 5:24pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – genuine student – failure to maintain enrolment – unsatisfactory academic progress – consideration of discretion – difficulties settling into student life – length of time in Australia without engaging in study – 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 14 February 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)(fa)(i) on the basis that the applicant did not undertake a Bachelor degree which was the purpose of the visa, he did not maintain enrolment in a registered course of study for more than six months and failed to make academic progress over a substantial period of time. The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visa should be cancelled.
Background
The applicant is a citizen of India and is currently 25 years old. He came to Australia on 9 December 2014 as the holder of a Subclass 573 Student visa and was enrolled to study a Diploma course leading to a degree. Since his arrival the applicant has completed a Certificate IV and Diploma of Business. As of the date of the hearing, he has departed Australia once since his arrival for approximately three weeks.
Prior to the hearing the applicant submitted the following evidence:
·     Psychologist’s reports dated 18 May 2015 and 1 July 2015;
·     Applicant’s academic record from secondary school in India;
·     Certificate and academic transcript for a Certificate IV in Business dated 7 January 2016;
·     Statement of attainment towards a Diploma of Business dated 4 May 2017.
The hearing
The applicant advised he came to Australia in December 2014 to attend University of Wollongong (UW). He had enrolled in a package of courses including a Diploma and Bachelor degree in Banking and Financial Services. The applicant said the university was far from Sydney and he requested a transfer. He then enrolled with an education provider in Sydney where he studied a Certificate IV in Business. When he began his Diploma the college closed and he was referred to another provider.
The Tribunal asked the applicant why he studied a Certificate IV course when he had been enrolled in…

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 Sandeep (Migration)

Details

AGLC: Sandeep (Migration) [2020] AATA 144
Case: [2020] AATA 144
Decision Date: 29 January 2020

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, Sandeep. The Minister had cancelled the visa on the grounds that the applicant was not a genuine student. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to affirm the cancellation.

The primary legal issue was whether the applicant satisfied the criteria for being a "genuine student" under section 116(1)(fa)(i) of the Migration Act 1958 (Cth). This involved assessing whether the applicant's conduct, including his enrolment history and academic progress in Australia, demonstrated that he was genuinely pursuing studies as contemplated by his visa. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, taking into account factors such as the purpose of his travel, his compliance with visa conditions, and any hardship that might result from cancellation.

The Tribunal found that the ground for cancellation existed because the applicant had failed to maintain enrolment and had spent six months in Australia without being enrolled in studies, despite holding a visa requiring higher education. While the applicant had provided reasons for his academic difficulties and expressed a desire to complete his degree, the Tribunal was not satisfied that he had a compelling need to remain in Australia, given his academic history over nearly five years. Although the Tribunal acknowledged some hardship would be caused by cancellation, it concluded that the applicant's conduct was inconsistent with being a genuine student and weighed against him.

Ultimately, 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

Full text does not contain this section.

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? 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. The Tribunal has considered the claims and submissions made by the applicant as well as prescribed matters under the Act where applicable, findings and reasons relating to the conduct of the applicant and whether the applicant is or is likely to be a genuine student or whether such conduct is contemplated by the visa held. The applicant’s education history in Australia is that he was first granted a Student visa in December 2014 to study a Diploma and Bachelor degree. Despite holding a visa that required him to study higher education, the applicant has only completed one Certificate and one Diploma course since his arrival. He also remained in Australia without being enrolled to study for six months. The applicant gave reasons for his failure to complete a degree and for the gap in his enrolment but did not dispute there were grounds to cancel his Student visa. 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

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.Wendy BanfieldMemberATTACHMENT – 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 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 travelled to Australia holding a Student visa and had obtained enrolment in a Diploma course and Bachelor degree. He began his studies at UW until he transferred to a college in Sydney. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant advised he wants to complete his Bachelor degree in Australia because it will give him a good future. He had made a similar submission to the Department as well as advising at the time that he was enrolled in a Bachelor of Accounting that was due commence on 8 May 2018. The Tribunal accepts the applicant may wish to remain in Australia to study but does not find this to be a particularly strong reason why he needs to stay. Given the applicant’s academic history over the course of nearly five years, the Tribunal is not satisfied he will remain enrolled or complete a degree, which is the reason for the grant of the visa in 2014. As such, he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia. · the extent of compliance with visa conditions There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment, study at the appropriate level, or progress satisfactorily is not consistent with being a genuine student and weigh against the applicant in this case.· degree of hardship that may be caused (financial, psychological, emotional or other hardship) The Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant did not make any specific claims in this regard but asked for time to finish a Bachelor of Accounting. He submitted to the Department that cancellation of his visa will be disappointing as he is an only child and his parents want him to receive higher education in Australia. The Tribunal accepts there will be a degree of hardship caused as a result of the applicant’s visa being cancelled and affords some weight in his favour in considering this criterion.