Singh (Migration) - [2023] AATA 2567

Singh (Migration) [2023] AATA 2567 (24 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jaskarandeep Singh
CASE NUMBER:  2211476
HOME AFFAIRS REFERENCE(S):          BCC2021/2274668
MEMBER:Christine Kannis
DATE:24 July 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 24 July 2023 at 8:24am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – gap in enrolment – family illness – unsatisfactory course progress – non-payment of course fees – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 189, 198, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03
CASES
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 8 August 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams video on 11 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.
Did the applicant comply with condition 8202?
On 13 August 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a full-time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
The requirements of condition 8202 do not…

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) [2023] AATA 2567
Case: [2023] AATA 2567
Decision Date: 24 July 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Singh, an applicant whose Subclass 500 (Student) visa was cancelled. The dispute centred on whether Mr Singh had breached condition 8202 of the Migration Regulations 1994, which mandates that a student visa holder must be enrolled in a full-time registered course and maintain satisfactory course progress and attendance. If a breach of this condition occurred, the visa could be cancelled under section 116(1) of the Migration Act 1958.

The primary legal issue before the Tribunal was to determine if Mr Singh had complied with condition 8202. This condition requires the visa holder to be enrolled in a full-time registered course, maintain enrolment in a course leading to a qualification at the same or higher level than the original course, and not be certified by their education provider as having unsatisfactory course progress or attendance. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, even if a ground for cancellation existed.

The Tribunal found that Mr Singh had breached condition 8202(2)(a) because the Provider Registration and International Students Management System (PRISMS) indicated he was not enrolled in a registered course from 3 September 2019 until 18 January 2022. While Mr Singh provided reasons for this gap, including family illness and a lack of support from his initial education provider, the Tribunal concluded that these circumstances did not negate the breach. After considering Mr Singh's response to the Notice of Intention to Consider Cancellation and weighing the circumstances, the Tribunal exercised its discretion to affirm the cancellation of his 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 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 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.Did the applicant comply with condition 8202? On 13 August 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:·be enrolled in a full-time registered course: 8202(2)(a)·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than the course in relation to which the visa was granted: 8202(2)(b)·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii). The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2] [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act. The information from PRISMS shows that the applicant was not enrolled in a registered course from 3 September 2019 until 18 January 2022. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 3 September 2019 until 18 January 2022 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(1) The holder must be enrolled in a full time course of study or training if the holder is:(a)a Defence student; or(b) a Foreign Affairs student; or(c) a secondary exchange student.(2) A holder not covered by subclause (1):(a) must be enrolled in a full time registered course; and(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:(a) is enrolled in a course at the Australian Qualifications Framework level 10; and(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.

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 to exercise its discretion to cancel the visa.Consideration of the discretion to cancel the visa 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’, as set out below. On 12 January 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 3 September 2019 and had therefore failed to comply with condition 8202(2)(a) of his visa. Response to NOICC On 19 January 2022, the applicant responded to the NOICC and provided the following information:·He started studying his Bachelors course at GCA (Group College of Australia) on 28 August 2017 and he attended the first semester and was doing well. He was attending lectures regularly, making his assignments and preparing for classes. ·At that time his father’s health is not good but still he was still doing his semester and mostly (80%) completed his studies. ·In last semester GCA staff didn’t let him enrol. He wrote an email to Mr Felix of GCA on 29 July 2019 and requested that he had six subjects left to complete his study but Mr Felix did not take his call and it started from there.·GCA did not support him and did not enrol him in a further semester so he enrolled at Polytechnic College.·He knew he skipped his studies in middle that was due to his father and GCA did not support him during that period. He had never intended to leave his studies. He had to change college because GCA was not supportive, so he changed his college to Bachelor of Business. ·Since he received an email from the Department about the intention to cancel his visa he got into a worse situation. He has anxiety and deep depression. Even though he got the email he is still studying and trying to complete his education and go back to India. His sole purpose was to complete his education in Australia and leave for good.·He will lose his future career if his visa is cancelled. He worked hard to get to here and wants to complete what he started. The Graduate Diploma of Management is his future and he would like to complete his studies. He and his parents have a dream to see him having a good career which can only happen if he continues his studies.·If his visa is not cancelled he will complete his studies on time. He has realized that he wasted some time during his period in Australia, but he is still focused and determined to complete what he has started.·He has already paid his semester fees. ·He is a good student and would like to continue and complete his education in Australia. It was his father’s dream and his parents want him to complete his education. He is motivated and the new college is helpful regarding his situation and are helping him along the way.