SINGH (Migration) - [2019] AATA 5568

SINGH (Migration) [2019] AATA 5568 (29 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr JAGMOHAN SINGH
CASE NUMBER:  1704418
HOME AFFAIRS REFERENCE(S):          BCC2017/319596
MEMBER:Brian Camilleri
DATE:29 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 29 August 2019 at 3:40pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered higher education course ceased – applicant’s difficulty passing foundational English subjects – applicant completed vocational course – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 573.111, 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 2 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 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 on13 March 2019.
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) (b). 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?
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 was attached to the applicant’s 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 comply with cl.573.231 if 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, masters 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’…

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 5568
Case: [2019] AATA 5568
Decision Date: 29 August 2019

CaseChat Overview and Summary

This matter concerned an appeal 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 enrolment in a registered higher education course, and had experienced difficulty passing foundational English subjects. The Administrative Appeals Tribunal was required to determine whether the ground for cancellation was made out and, if so, whether the visa should be cancelled.

The primary legal issue was whether Mr Singh had complied with condition 8516 of his visa, which requires the holder to continue to satisfy the criteria for the grant of the visa. This condition, in the context of a Subclass 573 visa, necessitates maintaining enrolment in a registered higher education course. The Tribunal considered the definition of an "eligible higher education student" and the requirements for enrolment in a principal course, as stipulated by relevant legislative instruments in effect at the time of the visa application. Mr Singh contended that he was unaware of the visa conditions and that his agent had not communicated them.

The Tribunal found that the ground for cancellation under s 116(1)(b) of the Migration Act 1958 was established, as Mr Singh was no longer enrolled in a principal course of study that met the visa requirements. In considering whether to exercise its discretion to cancel the visa, the Tribunal weighed various factors. These included Mr Singh's stated inability to pass foundational English subjects, his prolonged period without enrolment at the required level, and the fact that his visa cancellation would not have consequential effects on any secondary visa holders. While acknowledging Mr Singh's completion of a vocational course, the Tribunal gave weight to the departure from the original purpose of his stay and the potential consequences of cancellation, such as limited future visa options in Australia.

Ultimately, the Tribunal was satisfied that the ground for cancellation existed and exercised its discretion to affirm the cancellation of Mr Singh's visa. The Tribunal noted that cancellation would not necessarily lead to immediate removal, and Mr Singh would be eligible to apply for a Bridging Visa E to allow him time to arrange his departure from Australia. The Tribunal also considered that cancellation would not result in indefinite detention or breach Australia's international obligations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 on13 March 2019.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) (b). 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? 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 was attached to the applicant’s 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 comply with cl.573.231 if 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, masters 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 providers for this visa was IMMI 15/20. 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 14/015. The meaning of “eligible higher education student “is defined in cl.573.111. The applicant is not now an eligible higher education student and is not enrolled in, or the subject of a current offer of enrolment in a principal course specified in an instrument in force at the time of the application. The applicant says that he was not aware there were conditions attached to his visa and his application was dealt with by an agent who did not communicate these facts. He also says that when he changed courses he was not aware that there were any conditions on what courses he could elect when changing an enrolment.

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 by operation of law under section 140 of the Act, of the visa of any other person. I give this matter weight in favour of cancelling the visa in my consideration of the discretion. I give this matter weight in favour of cancelling the visa.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. But the statutory consequences of a visa cancelled under these 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.Whether Australia has international obligations that would or may be breached as a result of cancelling the applicant’s student visa The Tribunal considered whether Australia has international obligations that would (or may) be breached as a result of cancelling the applicant’s student visa and finds that cancellation of the applicant’s student visa would not result in engaging Australia's international obligations.Are there children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation?

Ratio Decidendi

Legal Principle Established

The Tribunal is satisfied that the ground for cancellation in s.116 (1) (b) exists. But as that ground does not require mandatory cancellation under s.116 (3), the Tribunal must proceed to consider whether the visa should be cancelled.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 applicant’s travel to and stay in Australia In his response to the Department’s Notice of Intention to Consider Cancellation (NOICC) (14 February 2017) the applicant stated that his inability to pass the required foundational English subjects prevented him from admission to his degree. He remained without enrolment at the required level right up to the time of cancellation of his visa on 2 March 2017. I give this matter weight in favour of cancelling the visa in my consideration of the discretion. The applicant was handed a copy of an up to date PRISM record of his studies in Australia at the commencement of the hearing. He was also had in his possession a copy of the Decision Record of the delegate. The first course he enrolled in was English for Academic Purposes at the Sydney College of English- he finished (i.e. attended) the course but did not pass the course. He says he was sick at the time. He did not re-enrol for this course but he was advised he could take a Bachelor of Business without passing his English Courses. He was advised that English was not a pre-requirement for a Diploma. But later he was advised that that he could not commence the Diploma of Business as he did not have the pre-requisite English competencies. He was then advised that application should be made to another college. He re-enrolled in English but then received the notification of cancellation of his visa. He then did not continue to study any course. This was a significant departure from the purpose for which is visa was granted, notably, the intended level of study contemplated by the visa. I give this matter weight in favour of cancelling the visa in my consideration of the discretion. In the event of cancellation of his visa the applicant is eligible to apply for a Bridging Visa E to allow him to continue to lawfully remain in Australia for a period to finalise any outstanding matters. At the hearing before the Tribunal the applicant produced a letter dated 22 December 2017 from the Australian Education & Learning Institute (AELI) which concluded that the Applicant had supplied AELI “with valid, authentic and sufficient evidence, along with the completed Recognised Prior Learning (PRL) kit which was then assessed by our trainer through our RPL method. “ This letter further stated that the applicant had “been deemed competent in the units of competency listed on their Statement of Attainment and has satisfied the requirements for the qualification of BSB51915 Diploma of Leadership and Management.” However, the applicant says he did not complete this Diploma course. I give this matter weight against cancelling the visa in my consideration of the discretion.