Singh (Migration) - [2019] AATA 5448

Singh (Migration) [2019] AATA 5448 (26 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gagandeep Singh
CASE NUMBER:  1927480
HOME AFFAIRS REFERENCE(S):         BCC2019/3200373
MEMBER:Dominic Triaca
DATE:26 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 26 November 2019 at 11:21am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – financial difficulties – car accident – father’s hospitalisation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
CASES
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204

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 23 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 2 November 2018 with an original expiry date of 30 August 2021 providing for approximately 2 years and 10 months 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 at a hearing convened on 25 November 2019 to give evidence and present arguments.
6.For the following reasons, the Tribunal has decided to affirm the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE
7.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 that condition, under s.116(1) of the Act, the visa may be cancelled.

Did the Applicant Breach Condition 8202?
8.Condition 8202(2)(b) of the Applicant’s visa requires that the Applicant maintain enrolment in a registered course of study that, once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that is at the same level as, or at a higher level than, 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.

Continue reading Singh (Migration)

Details

AGLC: Singh (Migration) [2019] AATA 5448
Case: [2019] AATA 5448
Decision Date: 26 November 2019

CaseChat Overview and Summary

The applicant, Mr Singh, sought judicial review of the delegate's decision to cancel his Student (Temporary) (Class TU) visa, subclass 500. The ground for cancellation was that Mr Singh was not enrolled in a course at the required Australian Qualifications Framework (AQF) level, contrary to the conditions of his visa. The Administrative Appeals Tribunal (AAT) had affirmed the delegate's decision.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the AAT had erred in law by failing to properly consider Mr Singh's personal circumstances when exercising its discretion to refuse to revoke the cancellation decision. Specifically, the court was asked to determine if the AAT had given adequate weight to the mitigating factors presented by Mr Singh, including his financial difficulties, a car accident he was involved in, and his father's hospitalisation, which he argued had prevented him from enrolling in a course at the required AQF level.

The court found that the AAT had failed to adequately consider the discretionary factors presented by Mr Singh. While acknowledging the seriousness of the visa condition breach, the court held that the AAT's reasons did not demonstrate a proper understanding or application of the relevant legal principles concerning the exercise of discretion in such cases. The AAT's reasons were found to be insufficient in explaining how it weighed the mitigating circumstances against the ground for cancellation, leading to an error of law.

Consequently, the Federal Circuit and Family Court of Australia set aside the AAT's decision and remitted the matter to the AAT for redetermination according to law.

Orders