Shah (Migration) - [2020] AATA 3500

Shah (Migration) [2020] AATA 3500 (16 July 2020)

DECISION RECORD

DIVISION:		Migration & Refugee Division
APPLICANT:		Syed Tasawar Hussain Shah
CASE NUMBER:		1831737
HOME AFFAIRS REFERENCE:		BCC2018/3937101
MEMBER:		Dr Jason Harkess
DATE:		16 July 2020
PLACE OF DECISION:		Melbourne
DECISION:		The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 16 July 2020 at 4:23pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – circumstances giving rise to non-compliance – non-genuine student – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

The Applicant is a citizen of Pakistan and is 32 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 24 October 2018 cancelling his Student (Temporary) (Class TU) Subclass 500 visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant lodged his review application with the Tribunal on 29 October 2018.

Original Visa Grant

The Applicant’s visa was granted on 8 March 2018. It was granted because a delegate of the Minister had determined that he met the primary criteria for the grant of a student visa.[1]
[1] The primary criteria for the grant of a student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.
The visa had an original expiry date of 26 October 2020 before it was cancelled. It provided for more than two years and seven months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study. Specifically, the visa had been granted so that the Applicant could complete a Master of International Relations at the University of Queensland.

Reasons for Cancellation

The Applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s 116(1)(b) of the Act. The delegate found that the Applicant had not complied with a condition of his visa. Specifically, it was found that the Applicant had failed to comply with that condition which required him to maintain enrolment in a registered course of study that, once completed, would provide him with a qualification from the Australian Qualifications Framework (‘AQF’) that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted. Upon making that finding, the delegate proceeded to consider all other relevant circumstances before concluding that the Applicant’s visa ought to be cancelled.
The delegate’s reasons are set out in a decision record. That decision record was provided to the Applicant when he was notified that his visa had been cancelled on 24 October 2018.[2] By lodging his…

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

Case: [2020] AATA 3500
Decision Date: 16 July 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the cancellation of a Student (Temporary) (Class TU) visa, subclass 500, held by Mr Shah. The cancellation was based on the ground that Mr Shah was not enrolled at the required Australian Qualifications Framework (AQF) level. The AAT was required to determine whether the delegate's decision to cancel Mr Shah's visa was correct, and in doing so, to consider the exercise of discretion in relation to the circumstances giving rise to the non-compliance.

The central legal issue before the Tribunal was whether Mr Shah was a "non-genuine student" for the purposes of the *Migration Act 1958* (Cth) and its associated regulations. This involved assessing whether his enrolment was consistent with the genuine intention to study and whether the circumstances leading to his non-compliance with enrolment requirements were such that visa cancellation was warranted. The Tribunal had to weigh the seriousness of the non-compliance against any mitigating factors presented by Mr Shah.

In its reasoning, the Tribunal applied the principles of administrative law and the specific provisions of the *Migration Act* and *Migration Regulations 1994* (Cth) concerning student visas and grounds for cancellation. The Tribunal found that Mr Shah's conduct indicated he was not a genuine student, as his enrolment did not align with the purpose of obtaining a student visa. The Tribunal affirmed the delegate's decision to cancel the visa, concluding that the circumstances did not support an exercise of discretion in favour of Mr Shah.

Orders