Sandhu (Migration) - [2024] AATA 2962

Sandhu (Migration) [2024] AATA 2962 (31 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Karanbir Singh Sandhu
REPRESENTATIVE:  Mr Manmir Bawa (MARN: 2117648)
CASE NUMBER:  2215978
HOME AFFAIRS REFERENCE(S):          BCC2022/2219362
MEMBER:Rachel Westaway
DATE:31 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 31 July 2024 at 4:32pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased studies – education provider failed to notify course cancellation – English requirement – mental health issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 4 Public Interest Criterion 4013; Schedule 8; Condition 8202
CASES
Wan v MIMA (2001) 107 FCR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 26 October 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that on the basis that the applicant was not enrolled in a full-time registered course of study. 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 13 December 2023 at 12:30pm to give evidence and present arguments. The hearing was conducted with the assistance of a Punjabi interpreter.
The applicant was represented in relation to the review.
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 issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.
Background
The applicant is a 28-year-old male from India
The applicant was granted a TU-500 visa on 6 April 2021.
Tribunal Application
The applicant lodged their application for review on 31 October 2022. They provided the Department of Home Affairs decision record and notification letter and Indian passport along with their application for review.
On the 13 December 2023, the day of hearing the applicants authorised representative made the following submissions:

Written statement from the representative.
CoE for a Bachelor of Social Work.
CoE for a Bachelor of Community Services.
Medical certificate dated 11 December to 13 December 2023.
Email correspondence between applicant and representative dated 6 December 2023.
· Email correspondence between applicant and Victoria University dated 22 July 2022.
CBHS health cover dated 22 October 2020.
Front Cooking School, Certificate III and record of Results in Commercial Cookery dated 2 March 2018.
Front Cooking School, Diploma of Hospitality…

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 Sandhu (Migration)

Details

AGLC: Sandhu (Migration) [2024] AATA 2962
Case: [2024] AATA 2962
Decision Date: 31 July 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Sandhu, an applicant for a Student (Temporary) (Class TU) visa, subclass 500. The dispute arose from the Department of Home Affairs' decision to cancel Mr. Sandhu's visa. The applicant sought review of this cancellation decision.

The primary legal issue before the Tribunal was whether Mr. Sandhu had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth). This condition requires a student visa holder to maintain enrolment in a registered course of study. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that the evidence, including Mr. Sandhu's own admissions, established that he had not been enrolled in a full-time registered course for a significant period, specifically from May 2021 to August 2022. This failure constituted a breach of condition 8202(2)(a) of the Regulations. While acknowledging Mr. Sandhu's stated desire to remain in Australia, pursue studies in hospitality, and make his parents proud, the Tribunal did not consider these reasons to be a compelling need to remain in Australia, particularly given the prolonged period of non-enrolment. The Tribunal also noted that Mr. Sandhu's stated intention to study a Bachelor of Social Work appeared questionable, as he indicated he was encouraged to enrol and ideally preferred to obtain work experience.

Consequently, the Tribunal affirmed the Department's decision to cancel Mr. Sandhu'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 The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.Background The applicant is a 28-year-old male from India The applicant was granted a TU-500 visa on 6 April 2021.Tribunal Application The applicant lodged their application for review on 31 October 2022. They provided the Department of Home Affairs decision record and notification letter and Indian passport along with their application for review. On the 13 December 2023, the day of hearing the applicants authorised representative made the following submissions: On 15 August 2022 the Department of Home Affairs sent a Notice of Intention to Consider Cancellation (NOICC) letter to the applicant. On 29 August 2022, applicant provided a written response via email, along with a CoE for a Bachelor in Community Services dated 19 September 2022 till 31 May 2025. On 26 October 2022 the Department notified the applicant that his visa was being cancelled. The Department noted that PRISMS indicated that the applicant had not been enrolled in a registered course since 04 May 2021 and therefore had not complied with the requirements of subclause (2)(a) of condition 8202. The Department made note that the applicant’s visa was granted subject to condition 8202, which requires the holder to be enrolled in a registered course. PRISMS indicated that the applicant had not been enrolled in a registered course of study from 04 May 2021 to 25 August 2022. As the applicant did not maintain enrolment in a registered course of study, they no longer met the requirements of subclause 8202(2)(a). Therefore, they did not comply with a condition of the visa.Post Hearing Submissions Following the hearing, the applicant was granted an extension to provide further submissions by 31 January 2024. On 29 January 2024 the applicant provided the Tribunal with the following: The submission stated that “the education provider failed to notify the student about the COE status during COVID. It stated that the reason for his COE (BE42C989) cancellation was that the student was notified of the cessation of study; whereas the student never requested the University to cancel COE or cessation of study. The education provider never informed the student about his COE status”. The submission stated that the English requirement for a Bachelor of Social Work is seven each or equivalent. However, the University enrolled students and issued a COE although the student did not meet the English requirement. The submission argued that the applicant’s limited English should have been considered and the submission implied that this responsibility should sit with the course provider.

Decision

Reasons for decision

Considering the circumstances individually and as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Rachel WestawaySenior MemberATTACHMENTMigration Regulations 1994…Schedule 88202(1) The holder must be enrolled in a full time course of study or training if the holder is:(a)a Defence student; or(b) a Foreign Affairs student; or(c) a secondary exchange student.(2) A holder not covered by subclause (1):(a) must be enrolled in a full time registered course; and(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:(a) is enrolled in a course at the Australian Qualifications Framework level 10; and(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.

Ratio Decidendi

Legal Principle Established

On the evidence before the Tribunal, namely the applicant’s own admission, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).Consideration of the discretion to cancel the visa Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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 Procedural Instruction ‘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 stated he came to Australia in 2015 and was granted a student visa to study a Certificate 3 and 4 in Cookery and he had an objective to apply for a graduate visa with work rights. He claims he was granted a graduate visa however the COVID 19 pandemic occurred and lockdowns and the visa expired and he couldn’t undertake work or obtain experience. His agent suggested a Bachelor degree of Social Work which is what the visa under review was granted for. The applicant claims he was stressed and couldn’t go anywhere, and he couldn’t see what his future held. He claims he had no interest in social work but the agent forced him to enrol. The Tribunal asked the applicant why he remained in Australia if he didn’t want to study this course and wanted work experience in hospitality. He said he wanted to obtain experience in order to work in his own country and open an Indian restaurant but he struggled to obtain a job and he wanted to make his parents proud as he is the only son. His hope is to work in hospitality and complete his studies. He wants to undertake studies in Hospitality and a Bachelor of Tourism and he believes this course will help him open his own restaurant. The applicant stated that it is his dream to get a degree and he wants his parents to be proud him and his mother is depressed. His father is too. The purpose of the student visa is for the applicant to undertake the full time course of study however the applicant was not enrolled in a course for over 15 months. The applicant stated that he only applied for the student visa to study a Bachelor of Social Work as he was unable to obtain work on his graduate visa. From the information before the Tribunal, the Tribunal questions whether the applicant did have a genuine intention to study as he has clearly told the Tribunal that he ideally wanted to obtain work on the graduate visa and was encouraged to apply for the Bachelor or Social Work which he did not want to do. Whilst the Tribunal acknowledges the applicant would like to remain in Australia and notes his interest study and work experience in hospitality and his desire to make his parents proud as the only son, the Tribunal does not see this as a compelling need to remain in Australia.