Sheng (Migration) - [2020] AATA 187

Sheng (Migration) [2020] AATA 187 (30 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Zhiguang Sheng
CASE NUMBER:  1731798
HOME AFFAIRS REFERENCE(S):           BCC2017/3114901
MEMBER:Stephen Conwell
DATE:30 January 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 30 January 2020 at 5:07pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – continue satisfaction of primary criteria – enrolment in the higher education sector – consideration of discretion – mental health issues – no ongoing treatment plan – significant breach – purpose of visa not fulfilled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, 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 11 December 2017 made by a delegate of the Minister for Immigration and Border Protection 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) of the Act on the basis that the delegate found the applicant had breached condition 8516 which was attached to his Subclass 573 Higher Education Sector visa. The delegate went on to consider that the factors in favour of cancellation outweighed those against, 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 appeared before the Tribunal on 12 December 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, these include the ground set out in s.116(1). 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,…

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 Sheng (Migration)

Details

AGLC: Sheng (Migration) [2020] AATA 187
Case: [2020] AATA 187
Decision Date: 30 January 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 Higher Education Sector visa held by the applicant, Sheng. The dispute arose because the applicant was no longer enrolled in a principal course of study as required by condition 8516 of his visa. The Tribunal was tasked with determining whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue was whether the applicant had breached condition 8516, which mandates that a visa holder must continue to satisfy the criteria for the grant of their visa. This condition was interpreted to require continuous enrolment in a specified course of study throughout the visa's validity. The Tribunal also considered the applicant's submissions regarding mental health issues and family circumstances in deciding whether to exercise the discretion to cancel the visa.

The Tribunal found that the applicant had indeed breached condition 8516 by ceasing enrolment in his Bachelor's degree course without maintaining enrolment in a specified principal course. The applicant's claims of mental health issues, while noted, were not supported by contemporaneous evidence of an ongoing treatment plan, and the Tribunal found that the applicant had not proactively communicated his difficulties to his education provider or the Department. While acknowledging the applicant's subsequent enrolment in vocational education and training courses, the Tribunal concluded that the significant breach of the visa condition, coupled with the lack of a clear plan to fulfil the original purpose of the visa, weighed against exercising discretion to set aside the cancellation.

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, these include the ground set out in s.116(1). 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 is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind of a kind 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: cl.573.231.Does the ground for cancellation exist? The applicant provided to the Tribunal a copy of the delegate’s decision record, for the purpose of the review. The decision record indicates that on 29 April 2014, the applicant was granted a visa in Subclass 573 Higher Education Sector on the basis of his enrolment in a higher education sector level course. According to the delegate’s decision record, the applicant has not been enrolled in a Bachelor’s degree or Master’s degree course since 31 March 2015, and that he is not currently enrolled in a course of study that is a principal course of a type specified for a Subclass 573 visa, by the Minister, in an instrument made under regulation 1.40A. On 2 November 2019, the Department of Immigration and Border Protection 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 did not respond to the NOICC within the time allotted and the applicant’s visa was cancelled by a decision dated 11 December 2017. Condition 8516 requires that the visa holder must ‘continue to be a person who would satisfy the primary or secondary criteria… for the grant of the visa’. Condition 8516 contains a temporal requirement in the words ‘continue to be’. In the context of a visa condition which applies at all times while the visa is held, the Tribunal is of the view that this condition must be met at all times. The use of the term ‘would satisfy’ the criteria, suggests that it applies as if the criteria were being assessed at the time compliance with the condition is required, that is, at any time during the period of the visa. Therefore, if the applicant ceases to be enrolled in a principal course of a kind specified for the particular subclass, in this case, a higher education course, the applicant breaches condition 8516 of the visa, irrespective of subsequent re-enrolment.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.Stephen ConwellMember

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 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 told the Tribunal that after completing high school in China he wanted to come to Australia to pursue a tertiary qualification, before returning home to settle in to a career. He confirmed he was granted his visa on the basis of his enrolment in his principal course of study, a Bachelor of Business. At the hearing the applicant provided the following information by way of oral evidence: ·He did not complete his foundation language course because he developed ‘mental issues’, for which he consulted a psychologist. When the Tribunal queried whether he had supporting evidence for these claims, the applicant replied that he had no evidence with him but he would endeavour to provide such evidence to the Tribunal if he was granted further time in which to do so. The applicant claimed that his inability to complete the English language course created great anxiety for him, which was the underlying reason for his poor academic record and for not complying with visa condition 8516. He claims that he saw a psychologist for his anxiety and was advised to change from his bachelor course to study in the vocational and education (VET) sector.·He confirmed that he did not speak to his education provider regarding his study difficulties and the possible reasons giving rise to them. Nor did he contact the Department to enquire how his study difficulties might impact upon his visa status. Instead, upon cancellation of his enrolment in his principal bachelor studies on 31 March 2015, he enrolled two months later in a diploma of management at Clarendon Business College. He completed this diploma in October 2016 and went on to complete an Advanced Diploma in Leadership and Management in November 2017. He is currently enrolled in an Advanced Diploma of Marketing and expects to complete this in mid-2020.·He has no family in Australia; both his parents are professionals in China. Both have health problems for which supporting medical evidence has been submitted to the Tribunal. His mother’s medical records (translated into English) indicate that she suffers from moderate depression and related symptoms of anxiety and insomnia. She appears to receive treatment as an ‘outpatient’ in her local hospital. The applicant’s father also has medical records from the same local hospital (translated into English). He was a smoker for most of his life, but he appears to have quit smoking in recent years. He is a moderate drinker of alcohol on a daily basis. He complained of general dizziness and nausea, accompanied by poor appetite however his medical records disclose no specific ailment or disease.·When speaking about his own health the applicant mentioned that has been smoking for several years and he smokes between 1 to 2 packets of cigarettes a day. He submitted to the Tribunal his medical record from the Rowe Street Medical Centre. This records his heavy smoking and his intermittent medical concerns and the subsequent blood tests, x-rays and other procedures. The applicant did not direct the Tribunal to any particular health condition within his own medical records, however the Tribunal notes that his medical records show that he continues to be a heavy smoker smoking up to 40 cigarettes daily. Also that in April 2019 he did cough up blood on occasions. He was also prescribed a bronchodilator inhaler used in the long-term management of asthma. He was advised to quit smoking. There appears to be no prescription issued to the applicant or depression or anxiety, although he was prescribed sleeping tablets in June 2019.·When the Tribunal questioned the applicant on his claims of anxiety and depression he responded that he wished to consult a counsellor or a psychologist however as he was being bullied by his class mates in his bachelor course, he concluded that the bullying would become worse if he consulted a psychologist and the bullies became aware of this fact.·He claims that he didn’t receive the NOICC as it ‘went to his junk folder in his computer’. He only discovered it after the period of responding to the NOICC had ceased. The applicant submitted a late reply to the NOICC, dated 14 December 2017, a copy of which was submitted to the Tribunal. There is no evidence either on the Departmental file or in the Tribunal file which confirms that the applicant sent this response to the Department on or about 14 December 2017 (being the date appearing on the response). However the Tribunal is prepared to accept the applicant’s letter as a belated response to the NOICC and review it on its merits.·In his response the applicant states that he told his mother about his quitting his bachelor course only after he had done so. She advised him to study an easier course and this advice persuaded him to enrol in the VET sector. It was his intention to return to his bachelor studies upon attaining VET qualifications.