Singh (Migration) - [2019] AATA 5578

Singh (Migration) [2019] AATA 5578 (21 August 2019)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jasvir Singh
CASE NUMBER:  1728194
DIBP REFERENCE(S):  BCC2017/3229878
MEMBER:Stephen Conwell
DATE OF DECISION:  21 August 2019
DATE CORRIGENDUM
SIGNED:1 June 2020
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

The final sentence appearing in paragraph 9 of the Decision Record, should be deleted and replaced with the following:
“As the applicant was granted his Student visa on 3 April 2014, the relevant instrument specifying eligible education providers for this visa is IMMI 14/007.”
Stephen Conwell
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jasvir Singh
CASE NUMBER:  1728194
HOME AFFAIRS REFERENCE(S):          BCC2017/3229878
MEMBER:Stephen Conwell
DATE:21 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 21 August 2019 at 4:57pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered higher education course ceased – applicant changed to vocational course – non-attendance due to illness and medical treatment – no deferment of studies sought – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 573.223, 573.231; Schedule 8; Condition 8516; r 1.40
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 7 November 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 applicant no longer met subclauses 573.231 or 573.223(1A) and had not complied with Condition 8516. The delegate noted that the applicant had been enrolled in a higher degree course to be provided with the 573 visa, but left her course provider and enrolled in vocational courses in hospitality. 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 on 22 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English
The applicant provided a copy of the delegate’s decision to the Tribunal.
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
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…

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 5578
Case: [2019] AATA 5578
Decision Date: 21 August 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of Mr. Singh's Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The Minister had cancelled the visa on the grounds that Mr. Singh had ceased enrolment in a registered higher education course and had subsequently enrolled in a vocational course. Mr. Singh argued that his non-attendance was due to illness and medical treatment, and that he had not sought a deferment of his studies.

The Tribunal was required to determine whether the ground for cancellation under s. 116(1)(b) of the Migration Act 1958 (Cth) was made out, specifically whether Mr. Singh had complied with condition 8516 of his visa. This condition requires a visa holder to continue to satisfy the criteria for the grant of their visa, which in this case included maintaining enrolment in a specified course of study. The Tribunal also had to consider whether, if the ground for cancellation was established, the discretion to cancel the visa should be exercised.

The Tribunal found that Mr. Singh had indeed failed to comply with condition 8516, as he was no longer enrolled in a higher education course after his Bachelor of Business was no longer offered and he subsequently enrolled in vocational studies. However, the Tribunal then considered the exercise of discretion. It noted that while the ground for cancellation existed, it was not a mandatory cancellation. The Tribunal had regard to the applicant's circumstances, including his illness and medical treatment which led to his inability to attend classes and pay fees, and his return to India for treatment. Despite acknowledging the breach of condition 8516, the Tribunal ultimately affirmed the decision to cancel Mr. Singh's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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 is attached to the applicant’s visa. This condition 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 is an eligible higher degree student who satisfies cl.573.223(1A), or, if not, is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind 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: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 14/015. 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, Master’s 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. As the applicant applied for the visa on 3 April 2014, the relevant instrument specifying eligible education providers for this visa is IMMI 14/007. In the present case, the applicant’s visa was cancelled on the basis the applicant did not continue to be a person who would satisfy either subclauses 573.231 or 573.223(1A). As such it appeared that the applicant no longer satisfied the primary criteria for the grant of the visa and did not comply with condition 8516. The decision record identified that the Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 17 October 2017. The decision record sets out that on 3 April 2014 the applicant satisfied the primary criteria for the grant of the 573 visa and met cl.573.231 or cl.573.223(1A) to be granted the visa. These clauses require the applicant to be enrolled in a bachelor or master degree course, or in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.Stephen ConwellMember

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 the power to cancel the visa should be exercised.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’.Background Information On 3 April 2014 he was granted a TU-573 Student visa with condition 8516 attached. The applicant arrived in Australia on 16 April 2013. He initially enrolled in English for Academic Purpose which was to lead to a Bachelor of Business degree at University of Canberra. He completed his English course in June 2014. The applicant was to commence his Bachelor studies in August 2015 however he was advised by email from the University of Canberra advising that this course and several others would not be offered in 2015. This email was tendered as evidence to the Tribunal. The applicant responded to the NOICC on 1 November 2017 in which he describes his response to the cancellation of his university course:I decided to take advice from my family friends who [had] already studied in Australia … I genuinely wanted to study so I choose the course which I do not understand(sic) would be a waste of time and money[;] that’s why I decided to change my course. After talking and getting ideas from my peers and some resources online I decided to do Certificate 3, 4 in commercial cookery and Diploma of Hospitality … [I] started my course of Certificate III in Commercial Cookery but after [a] couple of months I started feeling ill, as I was having severe stomach pain so due to that reason I could not attend my classes frequently …Then I started Certificate IV of Commercial Cookery but I was still suffering from the pain … I went to hospital in emergency … There I found out that I have [a] kidney stone …. On the advice of his family the applicant returned to India on 22 October 2016 for medical treatment; he returned to Australia on 8 November 2016 but due to his ongoing medical condition, he couldn’t attend classes nor pay his course fees. His enrolment in his studies, including his Bachelor of Business, was cancelled on 9 March 2017. At the hearing, the applicant confirmed that he held an enrolment in a Bachelor of Business, on his arrival in Australia. He indicated that upon being advised by the University of Canberra that the Bachelor of Business course in which he was enrolled was no longer offered, he sought the advice of family and friends regarding his study choices which led him to enrol in hospitality studies in the VET sector. He conceded he was not enrolled in a higher sector course of study after 9 March 2017, and up until the Department issued him with a NOICC. He acknowledged that this was in breach of condition 8516.The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia