Singh (Migration) - [2019] AATA 4996

Singh (Migration) [2019] AATA 4996 (17 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harpal Singh
CASE NUMBER:  1706302
HOME AFFAIRS REFERENCE(S):           BCC2017/604194
MEMBER:Melissa McAdam
DATE:17 July 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 17 July 2019 at 10:27am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – business studies – not enrolled in higher course of study – unaware enrolment cancelled – unsatisfactory attendance – continued efforts to study – family bonds and responsibilities – responsible behaviour and compliance – multiple course enrolments –decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 359A
Migration Regulations 1994 (Cth), r 1.40A, cls 573.223, 573.231, Condition 8516

CASES
Ibrahim v MHA [2019] FCAFC 89
Singh v MIBP [2016] FCA 679
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 22 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 applicant was represented in relation to the review by his registered migration agent.
The applicant’s Student visa was granted on 27 November 2014. He lodged the application for the visa on 4 November 2014.
The delegate cancelled the visa under s.116(1)(b) on the basis that she was satisfied that the applicant had not complied with a condition of the visa. That condition was Condition 8516 – the visa 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.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
NOICC
On 6 March 2017 the delegate sent a Notice of Intention to Consider Cancellation of the applicant’s Student visa (NOICC), under s.116 of the Act. In the notice the delegate set out Criteria 573.231 and 573.223 (1A)
573.231
If subclause 573.223(1A) does not apply:
(a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
(b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:
(i) made under regulation 1.40A; and
(ii) in force at the time the application was made.
eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:
(a) the applicant is enrolled in a principal course of study for the award of:
(i) a bachelor’s degree; or
(ii) a masters degree by coursework;
(b) the principal course of study is provided by an eligible education provider;
(c) if 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 4996
Case: [2019] AATA 4996
Decision Date: 17 July 2019

CaseChat Overview and Summary

The applicant, Mr. Singh, sought review of a decision to cancel his Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The dispute centred on whether the grounds for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) were made out, and if so, whether the Minister should exercise the discretion to cancel the visa. The matter was heard by Melissa McAdam, a member of the Tribunal.

The Tribunal was required to determine if Mr. Singh had failed to comply with a condition of his visa, specifically condition 8516, which mandates that a visa holder must continue to satisfy the criteria for the grant of their visa. This included assessing whether Mr. Singh had maintained enrolment in a course of study that met the requirements for his Subclass 573 visa. If the ground for cancellation 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 the ground for cancellation under section 116(1)(b) was made out, as Mr. Singh's enrolment in his higher education course had been cancelled due to unsatisfactory attendance. However, the Tribunal then proceeded to consider the exercise of discretion. It noted Mr. Singh's efforts to continue studying in Australia, his compliance with other visa conditions, and the potential hardship his departure would cause, particularly in relation to his family responsibilities and his nephew. While acknowledging that Mr. Singh had not completed any course since his student visa situation became unstable, the Tribunal gave weight to his efforts and the familial bonds.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel Mr. Singh's Subclass 573 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 3 July 2019 the applicant wrote to the Tribunal stating the following (in summary):-He never gave the email address ‘s.harpal66@yahoo.in’ to the Department of Immigration.-On 6 March 2017 the department sent his s.116 notice to him at his address ‘harpalchahal885@gmail.com’.-If he had provided the other email to the department it would have communicated with him via that email instead.-He attached copies of communication from the Department to him, at the ‘harpalchahal885@gmail.com’ email address. 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. Condition 8516 requires that the visa 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. In respect of a criterion requiring the applicant to be enrolled, it has been held that 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 met cl.573.231 if they were 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 under cl.573.223(1A). The definition of ‘eligible higher degree student’ at the time of application, required that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, or masters degree by coursework: 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 education providers for this visa, at the time of application, was IMMI 14/047. 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. IMMI 14/015 specifies that the types of courses eligible for the Subclass 573 visa are:- Diploma (Higher Education)- Advanced Diploma (Higher Education)- Bachelor Degree- Graduate Certificate (Higher Education)- Graduate Diploma (Higher Education)- Associate Degree- Masters by Coursework

Decision

Reasons for decision

Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.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.Melissa McAdamMember

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 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 and stay in Australia, whether he has a compelling need to travel to or remain in Australia The applicant came to Australia to study. He commenced study but his enrolment was cancelled after several months due to an unsatisfactory attendance record. The applicant has undertaken brief periods of other study over the subsequent years he has remained in Australia. He has been enrolled in courses in each of the years he has been in Australia up until early this year. He has also completed English language courses and a Diploma in Business. Since 6 January 2016 the applica nt has been enrolled in a Diploma of Business which he commenced on 1 February 2016 and finished on 16 September 2016; a Diploma of Management, with the enrolment cancelled on 4 February 2016; and a Bachelor of Accounting with Group Colleges Australia which commenced on 28 August 2017, with the applicant’s enrolment cancelled on 20 February 2019. The Tribunal notes that in the period following the cancellation of the applicant’s Student visa he has not completed any course he has enrolled in. The instability of the applicant’s visa situation would likely adversely impact upon the applicant’s ability to successfully study in Australia. The Tribunal considers that the applicant has made some efforts to continue his studies in Australia and to continue to pursue studies in Australia. The Tribunal gives this factor some weight in the applicant’s favour.The extent of compliance with visa conditions There is no indication that the applicant has not complied with any other condition of his visa. The Tribunal therefore gives this factor some weight in the applicant’s favour. The degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant states he needs his visa so he can complete a Bachelor degree in Australia. He stated he will not be able to obtain work in India without a qualification. The Tribunal accepts that the applicant’s job prospects may be enhanced in India if he returns there with a higher education qualification. However there is no indication, apart from his statement, that the applicant will not be able to obtain satisfactory or reasonable employment in India. The Tribunal gives this factor only a little weight in the applicant’s favour. The applicant also stated he has become attached to his young nephew who is also attached and reliant upon him for care at times. The care he provides frees the child’s parents to both work, to save money to purchase a home. The Tribunal accepts that the applicant does shares some of the responsibility for the care of his nephew. However the Tribunal notes that the applicant’s other two sisters are also living in Sydney and have capacity to help the child’s parents at times they are unavailable to look after him. In view of the claimed bond between the applicant and his nephew and the support he is providing, the Tribunal accepts that it will be distressing and difficult for him, the child and the child’s parents if he has to depart Australia in the near future. The Tribunal therefore gives these factors some weight in the applicant’s favour.Circumstances in which ground of cancellation arose.