SHUJAT (Migration) - [2019] AATA 6752

SHUJAT (Migration) [2019] AATA 6752 (26 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr USAMA SHUJAT
CASE NUMBER:  1718298
HOME AFFAIRS REFERENCE(S):          BCC2017/1912268
MEMBER:Mark Bishop
DATE:26 September 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 26 September 2019 at 3:01pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – enrolment in the higher education sector – consideration of discretion – significant breach – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cl 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 16 August 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) on the basis that the applicant was no longer enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas. 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 26 September 2019 to give evidence and present arguments. Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant provided a copy of the decision record to the Tribunal.
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). 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?
s.116(1)(b) - non-compliance with conditions
A visa may be cancelled under s.116(1)(b) if the Minister 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. This condition requires a visa holder continue to satisfy the primary or secondary criteria for the grant of a 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…

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

AGLC: SHUJAT (Migration) [2019] AATA 6752
Case: [2019] AATA 6752
Decision Date: 26 September 2019

CaseChat Overview and Summary

This matter concerned an appeal by the applicant against the Minister's decision to cancel their Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The applicant had been granted the visa for the purpose of study in Australia.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established. This ground relates to the visa holder failing to comply with a condition of their visa, specifically condition 8516, which requires the holder to continue to satisfy the primary or secondary criteria for the grant of the visa. The Tribunal was also required to consider whether, having found a ground for cancellation, the discretion to cancel the visa should be exercised.

The Tribunal reasoned that condition 8516 necessitated the applicant maintaining enrolment in a course of study specified for their visa subclass. Evidence indicated that the applicant had not been enrolled in a course of study at the Higher Education Sector level since 30 November 2015, and had not obtained a new confirmation of enrolment or offer of study within the validity period of their visa. The applicant admitted to not commencing courses in General English and a Master of Business Administration, and had only completed a Diploma in Business in March 2017, with no further study undertaken since 2015. Despite the applicant's stated intention to study, the Tribunal found this admission and lack of subsequent enrolment weighed little in their favour, as it suggested their purpose of stay was not for study. Consequently, the Tribunal was satisfied that the applicant had breached condition 8516.

Having affirmed the ground for cancellation, the Tribunal considered its discretion. While acknowledging the applicant's original intention to study, the Tribunal found that the prolonged period of non-enrolment and lack of engagement in the specified course of study demonstrated a significant breach of visa conditions. Therefore, 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). 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?s.116(1)(b) - non-compliance with conditions A visa may be cancelled under s.116(1)(b) if the Minister 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. This condition requires a visa holder continue to satisfy the primary or secondary criteria for the grant of a 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, 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. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 12/037. 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 12/037. The delegate stated the applicant was provided with a NOICC on 24 July 2017. This notice invited the applicant to respond in writing. The applicant provided a response on 31 July 2017. The applicant agreed there were grounds for visa cancellation. The applicant provided reasons why the visa should not be cancelled. The applicant agreed there had been non-compliance.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.Mark BishopMember

Ratio Decidendi

Legal Principle Established

Based on the information before me, the Tribunal is satisfied that there is a ground for cancellation of the applicant’s visa under paragraph(s) s116(1)(b) breach of condition - 8516 of the Act.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 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 There is no evidence before the Tribunal to suggest that the applicant’s original intention for travel to and stay in Australia was not for the purpose stated in his application, namely to study. In evidence the applicant advised the Tribunal he came to Australia for the purpose of study. The applicant entered Australia on 30 October 2015. The delegate made a finding the applicant did not commence courses in General English and a Master of Business Administration. In evidence the applicant agreed this finding was correct. The Tribunal gives this consideration a little weight in the visa holder’s favour. Since entry the applicant has never studied in the proposed courses, which may indicate the applicant’s purpose of travel and stay in Australia is not for the purpose of study. In evidence the applicant advised the Tribunal he had commenced and completed a Diploma in Business in March 2017. He had not completed any other courses since 2015. The Tribunal asked the applicant to address compelling need. The applicant advised it was for the purpose of achieving an education. There is no evidence before the Tribunal to suggest that the visa holder’s original intention for their travel to and stay in Australia was not for the purpose of study. The Tribunal gives this consideration little weight in the visa holder’s favour.The extent of compliance with visa conditions The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) for the purpose of study. The applicant has not held enrolment in a course of study specified for his visa at the Student Higher Education Sector (subclass573) level from 30 November 2015. The delegate made a finding (based on PRISMS) that the applicant had not been enrolled in the Higher Education sector since 30 November 2015.. The applicant did not obtain a new approved confirmation of enrolment or a letter of offer in a course of study specified for the Student Higher Education Sector (subclass 573), which would have commences within the validity period of his then Student subclass 573 visa. Therefore, the applicant did not comply with condition 8516 which states a visa holder must continue to be a person who would satisfy the primary or secondary criteria as the case requires, for the grant of the visa.