Singh (Migration) - [2019] AATA 6751

Singh (Migration) [2019] AATA 6751 (1 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sukhwinder Singh
CASE NUMBER:  1705034
HOME AFFAIRS REFERENCE(S):          BCC2016/2916367
MEMBER:Brian Camilleri
DATE:1 October 2019
PLACE OF DECISION:  Sydney
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 01 October 2019 at 3:49pm

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 – health issues – genuine intention to study – erroneous understanding of visa conditions – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 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 8 March 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 holder had breached condition 8516 attached to the 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.
The applicant appeared for hearing before the Tribunal on 22 March 2019 to give evidence. The applicant spoke fluent English without an interpreter. The applicant had received a copy of the delegate’s Decision Record of 8 March 2017 and had it with him at the hearing. The Tribunal had at its disposal a copy of the Decision Record of 8 March 2017 available on the Departmental file. The applicant was provided at the hearing with a copy of the PRISMS record (Provider Registration and Information Management Systems).
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

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.
Whether there is a ground for cancellation
The applicant was granted a student visa from 17 June 2014 until 18 March 2018 and as at the date of the hearing of the review (22 March 2019) the visa would have already expired in the usual course almost exactly a year ago (had not the Delegate cancelled the visa on 8 March 2017).
Condition 8516 attached to the applicant’s visa requires that the 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.
On…

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 6751
Case: [2019] AATA 6751
Decision Date: 1 October 2019

CaseChat Overview and Summary

This matter concerned an appeal to the Tribunal by Mr Singh against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The cancellation was based on the ground that Mr Singh had ceased to satisfy the primary criteria for the grant of the visa and had not complied with condition 8516, which requires a visa holder to continue to satisfy the criteria for the grant of the visa.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 existed. If the ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that at the time of cancellation, Mr Singh was not enrolled in a Bachelor's or Master's degree, nor in a course of study specified for the Subclass 573 visa. This meant he no longer satisfied the primary criteria and had breached condition 8516, as evidenced by the PRISMS record and his own submissions. Despite this, the Tribunal considered the exercise of discretion. It noted that Mr Singh did not receive the Notice of Intention to Consider Cancellation due to an incorrect address, meaning the delegate made the decision without his submissions. The Tribunal also took into account Mr Singh's personal circumstances, including his initial difficulties with English, homesickness, and ill health, which disrupted his studies. It also weighed the significant consequences of cancellation, such as becoming an unlawful non-citizen, facing limitations on future visa applications in Australia under section 48, and the potential requirement to meet Public Interest Requirement 4013 for future temporary visa applications.

The Tribunal set aside the decision to cancel Mr Singh's visa. It concluded that while the ground for cancellation was established, the circumstances, particularly the lack of opportunity for Mr Singh to respond to the cancellation notice and the significant personal hardships he faced, weighed heavily in favour of exercising the discretion not to cancel the visa. The Tribunal noted that even if the visa were cancelled, it would have expired shortly after the review hearing, and any application for a new visa would be a matter for Mr Singh and the Department.

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

There are no secondary visa holders dependent whose visas may be cancelled as a consequence of a cancellation of the applicant’s visa. Any cancellation of the applicant’s student visa would not result in the automatic consequential cancellation of any visa by operation of law under section 140 of the Act, of the visa of any other person. I give this matter no weight in my consideration of the discretion. Legal consequences of a decision to cancel a visa If the visa was to be cancelled this would bring about the consequence that the applicant would become an unlawful non-citizen and liable to detention under s 189 and removal under s198 of the Migration Act 1958 (if he did not voluntarily depart Australia). In addition, the effect of section 48 of the Act would result in the applicant having very limited options to apply for further visas in Australia and would need to depart Australia and apply from overseas to pursue most types of further (other) visa applications. The Tribunal has given weight to these considerations in the visa holder's favour and against cancellation. If the visa was to be cancelled the applicant will incur a penalty in the sense that if the applicant has lodged a new temporary visa application then the applicant is required to meet Public Interest Requirement 4013, and that new temporary visa application may not be approved for a further period of the next three years. I have given weight to these considerations in the visa holder's favour and against cancellation. If the visa is to be cancelled then the applicant (as a citizen of India holding a travel document enabling him to return to India upon departing from Australia) is able to depart. The statutory consequences of a visa cancelled under such grounds are that:·If the TU-573 Higher Education Sector visa is cancelled, the applicant will not necessarily be immediately removed from Australia.·The applicant would be eligible to apply for a Bridging Visa E to allow him reasonable time to arrange to depart Australia.·Whilst a failure to depart Australia could nevertheless ultimately result in detention or removal action, it is not an inevitable consequence of any decision to cancel of the applicant’s TU-573 Higher Education Sector visa. Cancellation of the visa would not result in indefinite detention·There is no evidence that a cancellation would impact on any victims of family violence. The applicant was granted a student visa from 17 June 2014 until 18 March 2018 and as at the date of the hearing of the review (22 March 2019) the visa would have already expired in the usual course almost exactly a year prior to the review hearing (had not the Delegate cancelled the visa on 8 March 2017). Therefore even setting aside the decision to cancel the higher education student visa does not revive the original visa and application for another visa in the event of the delegates decision being set aside, is now a matter for the applicant and the department and the obtaining an appropriate certificate of enrolment and another visa.Whether Australia has international obligations that would or may be breached as a result of cancelling the applicant’s student visa

Ratio Decidendi

Legal Principle Established

At the time of the cancellation of the applicants TU – 573 student visa on 8 March 2017 the applicant was not enrolled in a bachelors or master’s degree and was not enrolled in a course of study that was a principle course of a type specified for Subclass 573 visa authorised by the Minister in an instrument made under regulation 1.40 A and had not continued to be a person satisfying either subclauses 573.231 or 573.223 (1 A). As such the applicant no longer satisfied the primary criteria for the grant of the visa and had not complied with condition 8516. This was apparent from the PRISMS record and supported by the applicant’s evidence. Consideration of discretion and conclusions The Tribunal is satisfied that the ground for cancellation in s.116 (1) (b) exists. But that as that provision does not require mandatory cancellation under s.116 (3), the Tribunal must still proceed to consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has therefore 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 applicant did not receive any Notice of Intention to Consider Cancellation (NOICC) (15 Feb 2017) as it was sent to his former address. The delegate of the Minister proceeded to make a decision in the absence of any submissions from the visa holder in response to the Notice of Intention to Consider Cancellation NOICC. His first notification (received after the event of cancellation) was to the effect that the visa had been cancelled. The applicant appealed to the Tribunal for review of the decision to cancel his visa. The Tribunal forwarded the applicant a letter dated 2 March 2019 inviting him to make any additional submissions prior to the hearing. The applicant responded on 18 March 2019 via his migration agent in written submissions.History prior to and after arrival in Australia Prior to arriving in Australia in June 2014 the Applicant enrolled in courses at the University of Canberra namely: (a) UC English Language Programs [059330F] (13/10/2014 – 19/12/2014);(b) Diploma of Business (extended) [070211J] (2/03/2016 – 29/01/2016;(c) Bachelor of Business Administration [025564B] (15/02/2016 – 31/12/2017). The Tribunal accepts the evidence of the applicant that his failure to pass the initial English Language Program at the University was due to homesickness and an inability to concentrate on his studies. He was at the time 21 years old and had no friends or associates in Canberra. He applied (and was granted) for an extension to complete the English Language Program. The Tribunal accepts the evidence of the applicant that his ill health lasted a considerable period during 2015 and 2016 as was reflected in his own actions and movements. He did not any advance medical evidence (as such) of his condition but his application for deferment and his relocation to Sydney corroborates there were significant factors at work which disrupted his original plans to complete Bachelor level courses at the University of Canberra. The Applicant mistakenly believed he could work his way through his illness (which was only successful after prolonged period).