Sandhu (Migration) - [2019] AATA 6160

Sandhu (Migration) [2019] AATA 6160 (17 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jobanjeet Singh Sandhu
CASE NUMBER:  1814134
HOME AFFAIRS REFERENCE(S):           BCC2018/907353
MEMBER:Nicola Findson
DATE:17 October 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 17 October 2019 at 1:48pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – ceased enrolment – changed study pathway – claimed administrative error – insufficient evidence provided – lack of motivation to study – completed vocational courses – significant period of non-enrolment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), cl 573.231, Condition 8516
CASES

Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 9 May 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)(b) on the basis that the delegate found the applicant had breached condition 8516 which was attached to the applicant’s 573 higher education sector visa and found that the factors against cancellation did not outweigh those in favour of cancellation and cancelled the visa. 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 sought review of the delegate’s decision on. The Tribunal was provided with copy of the delegate’s decision record by the applicant, for the purposes of the review.
The applicant appeared before the Tribunal on 6 May 2019 to give evidence and present arguments.
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)(b). 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.
A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8516 attached to the applicant’s visa. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to…

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) [2019] AATA 6160
Case: [2019] AATA 6160
Decision Date: 17 October 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Sandhu, who sought review of the Minister's decision to cancel his Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector. The dispute arose from Mr. Sandhu's alleged failure to comply with a condition of his visa, specifically condition 8516, which requires the visa holder to continue to satisfy the criteria for the grant of the visa. The primary ground for cancellation was that Mr. Sandhu had ceased to be enrolled in a higher education sector course.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. This involved assessing whether Mr. Sandhu had complied with condition 8516, which necessitates maintaining enrolment in a principal course of study that meets the criteria for the subclass 573 visa. The Tribunal also had to consider all relevant circumstances in exercising its discretion, including matters of government policy and the applicant's personal circumstances.

The Tribunal found that Mr. Sandhu had indeed failed to comply with condition 8516. While granted a visa for a Bachelor of Science, he had ceased enrolment in that course and, for a significant period of four years, had only undertaken vocational level study. His explanation for changing his study pathway and the delay in commencing higher education study was not sufficiently persuasive. Although Mr. Sandhu presented evidence of a de facto relationship with an Australian citizen and expressed a desire to complete his studies, the Tribunal was not satisfied that these factors outweighed the seriousness of his non-compliance with the visa conditions. The Tribunal noted that the applicant's de facto partner did not attend the hearing and that the applicant's claims regarding their relationship and her potential hardship were not fully substantiated to the Tribunal's satisfaction.

Ultimately, the Tribunal affirmed the decision to cancel Mr. Sandhu's visa. Despite acknowledging the applicant's stated desire to complete his studies and the potential impact on his relationship, the Tribunal concluded that the ground for cancellation was established and that the exercise of discretion to cancel the visa was warranted given the sustained non-compliance with a fundamental visa condition.

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 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)(b). 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. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance, condition 8516 attached to the applicant’s visa. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, masters degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 14/007. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 14/015.Does the ground for cancellation exist? The applicant provided to the Tribunal a copy of the delegate’s decision record, for the purposes of the review. The decision record indicates that on 11 April 2014, the applicant was granted a visa in Subclass 573 Higher Education Sector on the basis of his enrolment in a Bachelor of Science. On 19 April 2018, the delegate’s decision records that the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC), on the basis that he had failed to comply with condition 8516 of his visa because he had ceased to be enrolled in a Higher Education Sector course. The applicant responded to the NOICC on 26 April 2018. By way of response, he provided evidence that he had enrolled in a Bachelor of Business at Sheridan College, to commence on 25 January 2021.

Decision

Reasons for decision

The Tribunal has carefully considered the applicant’s evidence at hearing, and the limited documents he has provided, and finds that, considering the circumstances as a whole, the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Nicola FindsonMember

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised. Consideration of discretion 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. At his hearing, the applicant told the Tribunal that he came to Australia in May 2014, to achieve higher study. He said that it was his plan to complete his education – a Bachelor of Science - and then return to India to get a good job. The Tribunal discussed with the applicant its concern that he changed his study pathway immediately on arrival in Australia. It also discussed with the applicant that it was concerned that since his arrival in May 2014 and up until his visa was cancelled in May 2018 – four years - despite being on a higher education sector visa, he had only undertaken vocational level study. The applicant indicated that he had decided on a change in pathway before he arrived in Australia. He also told the Tribunal that it had always been his intention to undertake higher education study. The applicant told the Tribunal he had, unsuccessfully, applied for study rights following his visa cancellation. The applicant said he had not worked since his visa was cancelled. He said his family had helped support him financially since the cancellation. The Tribunal asked the applicant if he or others would suffer hardship if the visa were cancelled. The applicant indicated that he did not want his visa to be cancelled as he wanted to finish his studies. He said his life would be ruined if he returned to India without a Bachelor degree. He said that he had been in a de facto relationship with Ms Deep Kamal Pannu, a 22 year-old Australian citizen, for the last four years and that she would be impacted psychologically if his visa remained cancelled. When probed further about this relationship, the applicant conceded that his ‘girlfriend’ lives with her parents and not with him, but that they had intentions to marry in the future. He said he wanted to complete his studies before he thought about getting married. He indicated that he would like his girlfriend to accompany him overseas, when he has finished studying in Australia. The Tribunal asked the applicant why his girlfriend had not attended the hearing to, at the very least, support him. By way of response the applicant said that he had come alone as he was not aware she was able to be at the hearing. Following his hearing, the Tribunal received a statement from Ms Pannu, dated 15 May 2019. Ms Pannu states that she arrived in Australia in 2009 and is an Australian citizen. She states she has been in a de facto relationship with the applicant for the last four years. She states that even though they are not living together, their relationship is genuine and continuing. She states her parents have approved their relationship, but would like the applicant to complete his Bachelor level study before they get married. She states she intends moving overseas after the applicant completes his degree. She states she financially supports the applicant. She states she relies on the applicant for emotional support and that his visa cancellation has resulted in a lot of stress for her, which has led to depression and her requiring prescribed medication. She states that it would be very hard to leave her job and join the applicant in India if his visa remains cancelled. She states that they will not have enough money to support themselves and will be dependent on relatives. She states that India is a dangerous country and that she fears for her safety when she visits that country. She states that if the applicant goes back to India it will be devastating for her, because she cannot think about living without her ‘partner’. The Tribunal has had regard to this written information, but it does not overcome its concerns as to the significance of the applicant’s breach, set out below.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