Shrestha (Migration) - [2020] AATA 1334

Shrestha (Migration) [2020] AATA 1334 (5 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Santosh Shrestha
CASE NUMBER:  1718271
HOME AFFAIRS REFERENCE(S):          BCC2014/2225729
MEMBER:Stephen Conwell
DATE:5 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 05 February 2020 at 3:53pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Federal Circuit Court remittal – enrolment in a registered Higher Education course ceased – applicant’s changed to vocational course – eligible higher degree student – eligible education provider – visa condition met at all relevant times – applicant applied for a subclass 572 visa – decision under review set aside
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 573.223, 573.231; Schedule 8, Condition 8516; r 1.40
CASES
Abhishek v MIBP [2016] FCCA 82
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Singh v MIBP [2016] FCA 679
Singh v MIBP [2018] FCA 29
Singh v Minister for Immigration and Border Protection [2016] FCA 611
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 12 November 2014 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) on the basis that the applicant had not complied with a condition of his visa, namely condition 8516. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 22 April 2015, the Migration Review Tribunal, the statutory predecessor to this Tribunal, affirmed the delegate’s decision to cancel the decision. The applicant sought for the decision to be judicially reviewed by the Federal Circuit Court of Australia.
A Court order dated 10 August 2017 stated the Migration Review Tribunal was in jurisdictional error by failing to consider all elements of cl.573.223 as well as cl.573.231 of Schedule 2 to the Regulations. The matter was remitted back to this Tribunal to be determined according to law.
Following this court remittal, the applicant appeared before the Tribunal on 16 May 2019 to give evidence and present arguments. The applicant was invited, and attended a further hearing held on 4 February 2020 to give evidence and present arguments with respect to the discretionary factors which are to be considered when deciding whether to cancel the visa.
Both Tribunal hearing were conducted with the assistance of an interpreter in the Nepali and English languages. The applicant was represented in relation to the review by his registered migration agent, who attended both Tribunal hearings.
For the following reasons, the Tribunal has concluded that…

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 Shrestha (Migration)

Details

AGLC: Shrestha (Migration) [2020] AATA 1334
Case: [2020] AATA 1334
Decision Date: 5 February 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Shrestha, who sought review of the Minister's decision to cancel his Subclass 573 Higher Education Sector visa. The dispute arose because Mr. Shrestha had ceased enrolment in his registered Higher Education course and subsequently enrolled in a vocational course, leading to concerns about his compliance with visa conditions.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) existed, specifically whether Mr. Shrestha had failed to comply with condition 8516 of his visa. This condition mandates that a visa holder must continue to satisfy the primary or secondary criteria for the grant of their visa. The Tribunal also had to consider whether, if the ground for cancellation was established, it should exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal reasoned that while Mr. Shrestha had indeed ceased enrolment in his original Higher Education course, which could be seen as a breach of condition 8516, the circumstances surrounding this change were important. Mr. Shrestha provided evidence that he received misleading advice from a migration agent regarding his enrolment and visa status. The Tribunal noted that the purpose of his stay was to study, and he had remained in Australia for an extended period pursuing his education and this review. While acknowledging the breach, the Tribunal found that it was not a mandatory cancellation and, after considering the applicant's circumstances, including the misleading advice received and his continued intention to study, it concluded that the discretion to cancel the visa should not be exercised.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Shrestha's Subclass 573 Higher Education Sector 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 set aside. 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). 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)(b) if the Minister or the Tribunal is satisfied the holder did not comply with a condition of his visa. In this instance one of the conditions attached to the applicant’s visa was condition 8516. This condition requires that he must continue to be a person who would satisfy the primary criteria 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 an eligible higher degree student who satisfies cl.573.223(1A), or, if not, is enrolled in, or the subject of a current offer of enrolment in a principal course 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. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 12/037. 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, Master’s 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. As the applicant’s 573 visa was granted on 23 October 2013, the relevant instrument specifying eligible education providers for this visa is IMMI 14/007. At the time his 573 visa was granted the applicant was found to satisfy the primary criteria for a Subclass 573 visa. To do so, he would have to meet the requirements of cl.573.223(2) and cl.573.231 of Schedule 2 to the Regulations unless he was an ‘eligible higher degree student’ who had a confirmation of enrolment in each course of study for which he was an eligible higher degree student. If he was an ‘eligible higher degree student’ who had a confirmation of enrolment in each course of study for which he was an eligible higher degree student, he would have to satisfy the requirements of cl.573.223(1A). Was the applicant an ‘eligible higher degree student’ after 31 July 2014?

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not 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 are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. It is well established that the function of the Tribunal is to arrive at the correct or preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60). That case also considered the role of policy, and the Tribunal has had regard to Departmental policy.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 purpose of a Student visa is to enable the visa holder to undertake study in Australia. The purpose of the Higher Education visa is to enable the visa holder to undertake study at the higher education level. The Tribunal gives weight to the applicant’s oral evidence that the purpose of his travel to and stay in Australia was to study, which is why he has remained in Australia for this lengthy period, pursuing this merits review. The extent of compliance with visa conditions The Tribunal has considered the extent of the applicant’s compliance with visa conditions. Upon cancellation of his enrolment in the Bachelor of Information Technology on 31 July 2014, the applicant fell in breach of condition 8516. There is no evidence that the applicant has breached any other visa conditions and the Tribunal therefore gives this factor little weight in deciding whether to cancel his visa.Circumstances in which ground of cancellation arose The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach. The applicant agreed that he arrived in Australia on a subclass 573 Higher Education visa under the Streamlined Visa Process (SVP), however he claims not to have understood the evidentiary and efficiency benefits afforded to him under the SVP program. The applicant’s evidence is that after struggling in the first two semesters of his Diploma of Computing course (which was to lead eventually to the Bachelor of Information Technology) he and a friend had received misleading advice from a migration agent to the effect that it would be possible to change their enrolment to the VET sector by changing their visa status from the subclass 573 Higher Education visa to the subclass 572 visa appropriate for the VET sector. This agent (who is not the applicant’s current representative) assisted the applicant with admission into ACE for hospitality studies and with his application for the subclass 572 visa.