Sharma (Migration) - [2022] AATA 3990

Sharma (Migration) [2022] AATA 3990 (9 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jaswinder Sharma
REPRESENTATIVE:  Mr Harpal Singh Bajwa (MARN: 0955800)
CASE NUMBER:  2200728
HOME AFFAIRS REFERENCE(S):          BCC2018/1297265
MEMBER:Penelope Hunter
DATE:9 November 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 09 November 2022 at 10:03am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Federal Circuit and Family Court remittal – genuine student – courses cancelled, periods of non-enrolment and failure to maintain enrolment at same or higher level – discretion to cancel visa – facts conceded – currently enrolled in lower-level course in different subject area – courses available in home country – employment and business opportunity in family-owned premises – parents’ health – inconsistent explanations for enrolments and cancellations – circumstances within and outside applicant’s control – closure of one college – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(fa)(i), (1A), 359A
Migration Regulations 1994 (Cth), r 2.43(1C), (1D), Schedule 8, condition 8202(2)(a), (b)
CASE
MIMA v Hou [2002] FCA 574
STATEMENT OF DECISION AND REASONS
application for review

This is an application for review of a decision dated 7 August 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 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(fa)(i) of the Act on the basis that they were not satisfied that the applicant was a genuine student. The applicant has submitted to the Tribunal a copy of the delegate’s decision record under review. 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 applied to the Tribunal for a review of this decision on 15 August 2018. The applicant was invited to attend a hearing before the Tribunal (differently constituted) and on 30 June 2020, the decision under review was affirmed.
The applicant appealed this decision to the Federal Circuit and Family Court of Australia, and orders were made on 14 January 2022, by consent, remitting the matter back to the Tribunal for re-determination.
The applicant appeared before the Tribunal on 25 July 2022, via MS Teams video to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Punjabi languages.
The applicant was represented in relation to the review, and his representative participated in the hearing.
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…

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 Sharma (Migration)

Details

AGLC: Sharma (Migration) [2022] AATA 3990
Case: [2022] AATA 3990
Decision Date: 9 November 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal affirmed the decision to cancel the Subclass 573 Higher Education Sector visa held by the applicant, Mr. Sharma. The dispute concerned whether the grounds for visa cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) were met, and if so, whether the discretion to cancel the visa should be exercised. The applicant had arrived in Australia in July 2016 on a student visa to undertake a Bachelor of Business, but his enrolment was cancelled in May 2017. He subsequently experienced periods of non-enrolment and failed to maintain enrolment at the same or a higher level than that for which his visa was granted, breaching condition 8202.

The Tribunal was required to determine if the applicant was a "genuine student" as contemplated by section 116(1)(fa)(i) of the Act, or if he had engaged in conduct not contemplated by the visa under section 116(1)(fa)(ii). The Tribunal also had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including those outlined in the Department's Procedures Advice Manual and the applicant's submissions. The prescribed matters under regulation 2.43 of the Migration Regulations 1994 were also relevant to determining if the ground for cancellation existed.

The Tribunal reasoned that the applicant had not completed any course of study since his arrival in Australia and had been out of enrolment for significant periods, including a period of over six months, which constituted a breach of his visa conditions. Furthermore, the applicant's explanations for his enrolment changes and cancellations were inconsistent, and he was currently enrolled in a lower-level course in a different subject area than originally intended. While acknowledging circumstances such as a college closure and parental health issues, the Tribunal found that the applicant's overall conduct did not demonstrate he was a genuine student. The Tribunal also noted that the applicant no longer sought the qualification for which the visa was granted, suggesting no compelling need to remain in Australia for the original purpose.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.

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)(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 s 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with visa conditions… yet has not conducted himself or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is 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), reg 2.43(1C) and (1D) of the Migration Regulations 1994 (Cth) (the Regulations). The prescribed matters are set out in the attachment to this decision. The applicant was notified of the Department’s intention to consider cancellation (NOICC) on 27 July 2018. The Tribunal is satisfied that the NOICC was validly issued. The applicant provided submissions to the Department in reply on 3 August 2018, which are discussed below. The delegate considered the submissions of the applicant and the supporting documentation and proceeded to cancel the visa on 7 August 2018. The Tribunal discussed the following grounds for cancellation which arose on the material, and which were also identified in the decision record of the delegate: As at 7 August 2018, the applicant had not completed any course of study in Australia despite having arrived as the holder of a student visa on 31 July 2016. The applicant was granted his Higher Education Sector (Subclass 573) student visa on the basis of enrolment in a Bachelor degree, being a Bachelor of Business at the University of the Sunshine Coast with a start date of 1 August 2016 and an end date of 15 July 2019. Provider Registration and International Student Management System (PRISMS) records document that this enrolment was cancelled on 18 May 2017. The applicant had not obtained another enrolment prior to 7 August 2018, at the same level as or a higher level than, the registered course for which his Subclass 573 visa was granted. This was a breach of condition 8202 of his visa grant. The applicant was not enrolled in a course of study between 26 September 2017, when South Pacific Institute cancelled his enrolment in the Certificate III in Commercial Cookery, the Certificate IV in Commercial Cookery and Diploma of Hospitality to 9 April 2018 when Everest Institute of Education approved a further enrolment in a package of courses. The applicant was not enrolled in any course of study for a period of over six months in breach of condition 8202 of his visa. The applicant departed Australia on 11 April 2018 to 20 May 2018; upon his return, Everest Institute of Education cancelled his enrolment package. The applicant then enrolled in a further package commencing on 2 July 2018. Allowing for the period that the applicant was overseas, there was a period of almost eight months when he was not undertaking any study.

Decision

Reasons for decision

Overall, the Tribunal finds, considering the material before it as a whole, that the visa should be cancelled.decision The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.Penelope HunterMemberATTACHMENT – Extract from reg 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 applicant is a citizen of India. He first arrived in Australia on a Higher Education Subclass 573 student visa valid until 15 September 2019. The Tribunal has considered the oral evidence of the applicant provided at hearing, together with the submissions and documents provided by the applicant to the Department and the Tribunal. This includes the following information:i.The applicant’s submission to the Department via his representative dated 3 August 2018, including evidence of the applicant’s travel between 11 April 2018 and 20 May 2018, copies of his Confirmations of Enrolment (CoE), and medical reports including ultrasounds, from Dr Romana and Dr Kamal Sharma dated 18 April 2018 and a copy of a receipt from Orth Care Hospital also dated 18 April 2018. ii.Submissions to the Tribunal by the applicant on 14 November 2019, several documents regarding medical treatment for Mrs Manpreet Kaur, an outpatient card for Mr Ashwani Kumar dated 21 July 2018, a statement of attainment for the applicant from South Pacific Institute issued on 28 January 2018, a letter of job offer from Hotel Bahia Fort, signed by ‘manager’.iii.Submissions to the Tribunal by the applicant received on 22 July 2022, and further documents including an additional CoE in a Diploma of Hospitality at Nova Institute of Technology with course dates from 25 July 2022 to 22 July 2024 created on 22 July 2022, evidence of the applicant’s education in India, statement of financial support from the applicant’s father including evidence of identity, income, land valuation and bank deposits, identity documents for the applicant’s sister, costs estimates for the construction of premises (identified in index as applicant’s future business plan), statements of Mr Ashwani Sharma and Mrs Manpreet Kaur regarding their medical conditions.iv.Post-hearing statement by the applicant received on 26 July 2022 and CoE in a Graduate Diploma of Management at Nova Institute of Technology with course dates from 12 August 2024 to 11 August 2025 created on 25 July 2022. The purpose of the visa holder’s travel to and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia The applicant was granted his student visa to undertake a Bachelor degree in the higher education sector with a visa valid to September 2019. The period of the applicant’s initial visa has now expired and the applicant no longer desires a Bachelor qualification. Arguably there is no compelling need for the applicant to remain in Australia for the purpose for which the visa was granted.