Singh (Migration) - [2019] AATA 6616

Singh (Migration) [2019] AATA 6616 (11 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurlal Singh Singh
CASE NUMBER:  1925419
HOME AFFAIRS REFERENCE(S):         BCC2019/1514644
MEMBER:Dominic Triaca
DATE:11 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 11 December 2019 at 11:38am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – reason for non-compliance – mental health condition – life stressors – delay in seeking medical assistance – capacity to work – steps taken to remedy situation – significant breach for an extended period of time – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.The Applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 5 September 2019 cancelling his Subclass 500 student visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).
2.The Applicant’s student visa was granted on 23 September 2017 with an original expiry date of 20 August 2020 providing for approximately 3 years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.
3.The visa had been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, one or more registered courses of study for the duration of his stay in Australia.
4.The delegate cancelled the Applicant’s visa on the basis that the Applicant had breached that condition of the visa which required him to maintain enrolment in a registered course of study that, once completed, would 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 had been granted. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
5.The applicant appeared before the Tribunal on 25 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Sandeep Gill, the applicant’s best friend. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
6.The applicant was represented in relation to the review by his registered migration agent, Smita Gandhar who made submissions on his behalf.
7.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
8.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 (the Regulations). If the applicant has breached…

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) [2019] AATA 6616
Case: [2019] AATA 6616
Decision Date: 11 December 2019

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered an appeal by Mr Singh against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 500. The cancellation was based on the ground that Mr Singh was not enrolled in a registered course, a failure to meet a condition of his visa. The primary issue before the Court was whether the delegate's decision to cancel Mr Singh's visa, and the subsequent refusal to grant him a waiver of the cancellation, was affected by jurisdictional error.

The Court was required to determine whether the delegate had properly considered Mr Singh's reasons for non-compliance with his enrolment obligations, including his mental health condition and life stressors, and whether these factors were adequately weighed against the seriousness and duration of the breach. Specifically, the Court had to assess if the delegate had given sufficient consideration to Mr Singh's capacity to work and the steps he had taken to remedy his situation, and whether the delegate's conclusion that the breach was significant and had occurred over an extended period was reasonable in the circumstances.

The Court found that the delegate had considered the relevant factors, including Mr Singh's personal circumstances and the reasons for his non-compliance. However, the Court determined that the delegate had placed undue weight on the seriousness and duration of the breach, without adequately balancing these against the mitigating factors presented by Mr Singh. The delegate's reasoning did not sufficiently demonstrate a proper consideration of the discretion afforded to them, leading to a conclusion that the decision was affected by jurisdictional error. The Court therefore set aside the delegate's decision and remitted the matter to the Department for reconsideration according to law.

Orders