Singh (Migration) - [2024] AATA 652

Singh (Migration) [2024] AATA 652 (18 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ranjot Singh
Mrs Ramanpreet Kaur
Mr Manditt Singh
CASE NUMBER:  2219229
HOME AFFAIRS REFERENCE(S):          BCC2022/4146315
MEMBER:Christine Kannis
DATE:18 March 2024
PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 18 March 2024 at 12:13pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in full-time registered course – discretion to cancel visa – COVID pandemic, mental health, drug use and treatment – criminal conviction and community service – study history, including multiple cancellations – new enrolment made after receiving department’s notice – current/future study/work goals – currently in third country visiting family member – members of family unit wife and child – consequential cancellation of visas with no jurisdiction to review – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 348, 359AA
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
Education Services for Overseas Students Act 2000 (Cth), s 19(3)
CASE
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 23 December 2022 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the first named visa applicant (the applicant) failed to comply with a condition of his 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The applicant appeared before the Tribunal by MS Teams video on 11 March 2024 to give evidence and present arguments. The Tribunal also received evidence from the second named applicant, Mrs Ramanpreet Kaur.
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
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under…

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 Singh (Migration)

Details

AGLC: Singh (Migration) [2024] AATA 652
Case: [2024] AATA 652
Decision Date: 18 March 2024

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Singh against the cancellation of his Student (Temporary) (Class TU) visa, subclass 500. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation (NOICC) on the grounds that Mr. Singh had ceased to be enrolled in a registered course from 7 July 2022, thereby failing to comply with condition 8202(2)(a) of his visa. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal was required to consider the applicant's circumstances in response to the NOICC, which included explanations relating to the COVID-19 pandemic, mental health issues, drug use and treatment, a criminal conviction and community service, his study history including previous cancellations, a new enrolment made after receiving the NOICC, his current and future study and work goals, and his current location in a third country visiting family. The Tribunal also had to consider the implications for his wife and child, who were members of his family unit and whose visas were consequentially cancelled without jurisdiction to review.

In its reasoning, the Tribunal acknowledged that the cancellation of a visa is a significant matter. However, after considering all the circumstances, including the applicant's explanation of personal difficulties, his engagement with addiction and mental health services, and his subsequent enrolment in new courses, the Tribunal concluded that the ground for cancellation under s 116(1)(b) of the Migration Act 1958 existed. The Tribunal then exercised its discretion to affirm the decision to cancel the visa, finding that on balance, the cancellation was warranted. The Tribunal noted it had no jurisdiction to review the consequential cancellation of the visas of the other applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISIONThe Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicants.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(1) The holder must be enrolled in a full time course of study or training if the holder is:(a)a Defence student; or(b) a Foreign Affairs student; or(c) a secondary exchange student.(2) A holder not covered by subclause (1):(a) must be enrolled in a full time registered course; and(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:(a) is enrolled in a course at the Australian Qualifications Framework level 10; and(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.

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 to exercise its discretion to cancel the visa.Consideration of the discretion to cancel the visa 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’, as set out below. On 19 October 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 7July 2022 and had therefore failed to comply with condition 8202(2)(a) of his visa. Response to NOICC On 25 October 2022, the applicant responded to the NOICC and provided the following information:·He was continuing his studies efficiently when he was granted his student visa but life didn’t go well during COVID-19 and he kept changing jobs where he met new people and made new friends who gave him new habits good and bad and with loss of work he fell into bad company with drug usage.·Because of depression and the stress of work-family life balance, he fell for the wrong way in life. Earlier he thought it was just a stress buster but after that his drug use increased and he failed to manage his daily life, his studies and his family.·He completed his diploma studies and was about to start his advanced diploma studies but he had no motivation to study and ruined his life with drugs. His wife was supportive until she became aware of his situation but by this time he had was addicted to drugs and experienced withdrawal symptoms when not using. His life was out of control.·His wife tried to help him but she had a small kid. He stopped working and studying and stopped paying attention to anything in his life.·He developed signs of substance misuse such as difficulty meeting responsibilities, withdrawing from activities or not enjoying activities e.g. work, family, hobbies and experienced depression and anxiety. His behaviour changed and created conflict with his family as he was trying to push his wife away but she tried to help him in getting professional help and his life is back on track. Recovering from one situation he forgot his other responsibilities as a student and to help him they moved from Melbourne to Perth. ·His life is slowly getting back on track with the help he is receiving. ·He has been trying to fix his life and pay for his mistakes. His mother came from India to support him. He has enrolled in a new college and will be complying with his visa conditions. At the time of responding to the NOICC, the applicant provided documents including but not limited to the following:·CoE for Diploma of Leadership and Management created on 25 October 2022; ·CoE for Advanced Diploma of Leadership and Management created on 25 October 2022; ·Letter dated 2 June 2022 from First Step Addiction and Mental Health setting out the applicant’s 6 appointments in the period from 18 June 2021 to 12 April 2022; and ·Drug Dispensed Report for applicant for Methadone treatment printed by Wizard Pharmacy Kelmscott Stargate showing methadone dispensed in the period from 23 March 2022 to 17 July 2022.