Singh (Migration) - [2019] AATA 1708

Singh (Migration) [2019] AATA 1708 (27 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Karanveer Singh
CASE NUMBER:  1702700
HOME AFFAIRS REFERENCE(S):           BCC2016/3707553
MEMBER:Justin Owen
DATE:27 May 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 27 May 2019 at 11:31am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – ceased to be enrolled in a Higher Education Sector course – consideration of discretion – purpose of visa not fulfilled – substantial breach for significant period of time – responsibility of visa holder – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.40A; 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 February 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 is a national of India born 29 December 1995. His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 5 December 2014 and was subject to condition 8516. On 19 January 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8516 of his visa, as he was no longer enrolled in a Bachelor or Master degree course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A. As he had not continued to be a person that would satisfy either subclauses 573.231 or 573.223(1A), the delegate considered that the applicant had not complied with condition 8516 of his visa. The applicant responded to the NOICC on 4 February 2017. On 8 February 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8516 of his visa.
The delegate cancelled the visa under s.116(1)(b) on the basis that the delegate was not satisfied that the applicant complied with a condition of his visa, namely condition 8516. 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 18 April 2019 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8516 of Schedule 8 to the Migration Regulations 1994 (the Regulations). 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 1708
Case: [2019] AATA 1708
Decision Date: 27 May 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 dispute centred on whether Mr Singh had breached a condition of his visa, thereby providing grounds for its cancellation under section 116(1) of the Migration Act 1958 (Cth).

The Tribunal was required to determine if Mr Singh had failed to comply with condition 8516 of Schedule 8 to the Migration Regulations 1994, which mandates that a visa holder must continue to satisfy the primary criteria for the grant of their visa. Specifically, the Tribunal had to assess whether Mr Singh had maintained his enrolment in a higher education sector course as required by the criteria for his Subclass 573 visa. If a breach 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 Mr Singh had breached condition 8516 because he had ceased to be enrolled in a principal course of study at the higher education level for significant periods. Evidence from the Provider Registration and International Student Management System (PRISMS) indicated that Mr Singh had not maintained continuous enrolment in a qualifying course since his arrival in Australia in December 2014. While acknowledging Mr Singh's attempts to study vocational level courses as a pathway to higher education, the Tribunal concluded that these did not satisfy the requirements of his visa. The Tribunal determined that the purpose of a student visa, which is to enable study in Australia, had not been fulfilled by Mr Singh due to his inconsistent enrolment history and limited progress in higher education courses.

Consequently, the Tribunal affirmed the decision to cancel Mr Singh's visa, finding that the grounds for cancellation were made out and that the exercise of discretion favoured cancellation given the substantial and prolonged breach of the visa condition and the failure to fulfil the visa's intended purpose.

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 affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8516 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. 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 s116(1). 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 24 November 2014, the relevant instrument specifying eligible education providers for this visa is IMMI 14/075. 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. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 8 February 2017. The decision record states that information before the Department from the Provider Registration and International Student Management System (PRISMS) indicated that at the time of the delegate’s decision the applicant was no longer enrolled in a Bachelor’s degree or Master’s course and was not enrolled 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 regulation 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.Justin OwenSenior Member

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 Tribunal has considered the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia. The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia. The primary decision record indicates that PRISMS evidence available to the Department indicated the applicant ceased to be enrolled in a principal course of study at the higher education level from 16 June 2015. The applicant writes he received his student visa little more than six months earlier on 5 December 2014. Apart from a brief period the applicant was enrolled in a Bachelor of Accounting– between January 2017 and April 2017 – he has failed to remain enrolled in a principal course of study at the higher education level. The Tribunal considers the breach of condition 8516 to be significant and that the applicant had not been fulfilling the purpose of his travel to and stay in Australia as a holder of a student visa. The Tribunal notes that the applicant has twice enrolled in a principal course of study at the higher education level: the original Bachelor of Business Management course in 2014 at the International College of Management followed by the Bachelor of Accounting course in early 2017. He failed to progress further than six months at both courses. The applicant claimed he had problems understanding and managing his studies at the Bachelor of Business Management course and failed to pay his fees at the Bachelor of Accounting course. The applicant, based on the information he has provided in his written submission to the Tribunal, has enrolled in a range of vocational level courses and has claimed he wished to utilise these as a ‘pathway’ to the higher education program. The Tribunal is of the opinion that if the applicant found higher education principal courses of study too challenging then he should have applied for a VET level visa. The Tribunal notes the applicant’s oral and written evidence concerning his current enrolment in a Diploma of Business at Ransford College. The Tribunal accepts he has studied the Diploma full-time since commencing on 15 October 2018 and he has successfully completed two terms. The Tribunal notes however that this is not a principal course of a kind specified for a 573 Higher Education visa. Based upon the evidence of his significant period of non-enrolment, the Tribunal is of the view that the applicant was not in Australia for a significant period of time in accordance with the original purpose of his visa: the undertaking and completion of a course of study at the higher education level. The Tribunal finds that despite arriving in Australia in December 2014 – almost four and a half years ago – he has significantly spent less than a year studying a principal course of a kind specified for a 573 Higher Education visa. The Tribunal notes the applicant’s various (mostly cancelled or failed) efforts to study VET level courses and acknowledges his claim that he wished to study a pathway (via Certificate and Diploma level courses) to higher education study. The Tribunal also gives some positive weight to the fact that the applicant did apply to have study rights added to his Bridging Visa in March 2018. Nevertheless the Tribunal notes the applicant’s very limited achievements in his studies at the higher education level over a significant period of time and his consistently poor enrolment history until enrolling in his current VET level course of study.