Singh (Migration) - [2019] AATA 1013

Singh (Migration) [2019] AATA 1013 (27 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harpreet Singh
CASE NUMBER:  1709721
HOME AFFAIRS REFERENCE(S):           BCC2017/791271
MEMBER:Stephen Witts
DATE:27 March 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 27 March 2019 at 12:43pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – genuine student – enrolled in courses below the required level – medical condition – did not seek deferral or leave of absence – study record – lack of English ability – poor advice from agent – consideration of discretion – no compelling need to remain in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43
CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 3 May 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)(fa)(i)on the basis that the applicant was not a genuine student. 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 27 March 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
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)(fa)(i). 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?
s.116(1)(fa) - not a genuine student
A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.
In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying…

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 1013
Case: [2019] AATA 1013
Decision Date: 27 March 2019

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Singh against the cancellation of his Subclass 573 Higher Education Sector student visa. The Minister had cancelled the visa under section 116(1)(fa)(i) of the Migration Act 1958 (Cth), on the ground that Mr. Singh was not a genuine student. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal was required to consider whether Mr. Singh was a genuine student, as defined by section 116(1)(fa)(i) of the Act and elaborated upon in case law such as *MIMA v Hou* [2002] FCA 574. This involved assessing whether Mr. Singh's conduct, including his enrolment history and academic progress, indicated he was not genuinely pursuing higher education in Australia. The Tribunal also had to consider the prescribed matters under regulation 2.43 of the Migration Regulations 1994, which included whether his participation in a course of study had been deferred or suspended. 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 factors such as the purpose of his travel, any compelling need to remain in Australia, his compliance with visa conditions, and the degree of hardship that might be caused by cancellation.

The Tribunal found that the ground for cancellation existed because Mr. Singh had not maintained his study plan. He had enrolled in courses below the required level for his visa, had not been enrolled in a bachelor's or master's degree since August 2016, and had not been enrolled in a principal course specified for his visa subclass. While Mr. Singh cited a medical condition, lack of English ability, poor advice from an agent, and a desire to fulfil a dream as reasons for his study record, he had not sought a deferral or leave of absence. Furthermore, the Tribunal found that Mr. Singh had not demonstrated a compelling need to remain in Australia, noting his existing Bachelor of Civil Engineering qualification from his home country and his inability to successfully complete further studies in Australia. His claims of hardship if he returned were not substantiated with evidence.

Consequently, the Tribunal 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 affirmed.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)(fa)(i). 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?s.116(1)(fa) - not a genuine student A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]). For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision. According to the delegate’s decision record dated 3 May 2017, provided to the Tribunal by the applicant, the applicant was granted a Student (TU573) Higher Education Sector visa on 21 May 2014 to study a course package leading up to a Bachelor of Engineering degree. This course commenced on 26 May 2014 and was scheduled to complete on 30 June 2018. According to the delegate the applicant’s Provider Registration and International Student Management System records indicate that the applicant has not maintained the study plan as outlined in his initial student visa application. According to the delegate, in response to the Notice of Intention to Consider Cancellation, the applicant stated that he came to Australia to study a Bachelor of Engineering degree but before commencing this degree he needed to successfully complete an English course. The delegate contended that the applicant then dropped down to vocational level courses and was not able to study at the required level in accordance with his visa requirements. The delegate noted that the applicant had not been enrolled in a bachelor’s degree or master’s degree since 12 August 2016 and had not been enrolled in the 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.Stephen WittsMemberATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994…(1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.(1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:(a)because of the conduct of the holder; or(b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or(c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or(d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa) 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 any submissions provided to the Department, and to the Tribunal, and also the evidence taken at the hearing.·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 The applicant stated that he came to Australia because he wanted to study at higher education level. As above the applicant stated that he had a Bachelor of Civil Engineering gained back in his home country but wanted further higher education here in Australia. The applicant stated that he has parents and his sister back in his home country and has his partner here who he has been with since 2017 who is a permanent resident. He stated that he was currently working as a truck driver earning approximately $500AUD per week. The Tribunal invited the applicant to provide any evidence he wished in regard to whether he has a compelling need to remain in Australia on student visas. The applicant responded that “I came here to fulfil my dream. I came here to learn English and I can speak English well now. This will help me, complete my studies. It’s been a long time that I’ve been here if I go back I will spoil my future.” The Tribunal has considered the evidence provided by the applicant and the applicant’s statements above and finds that the applicant has not provided any evidence that he has a compelling need to remain in Australia on student visas. In particular, the Tribunal notes that the applicant already has a high level qualification gained back in his home country, a Bachelor of Civil Engineering, and has now been here for several years without being able to make a success of his further enrolments here in Australia. The applicant has not demonstrated that he has a compelling need to remain here on student visas.·the extent of compliance with visa conditions The Tribunal has found that the applicant was in breach of his student visa conditions and that his visa should be cancelled. The applicant also acknowledged that he did not contact the Department or make any effort to inform the Department that he was not enrolled and did not study during a significant part of his student visa period.·degree of hardship that may be caused (financial, psychological, emotional or other hardship) When asked by the Tribunal to provide any evidence as to a degree of hardship that may be caused should the applicant not to be able to remain here on Australia on student visas the applicant responded: “I feel hardship if I go back I will not be eligible for jobs back there. Also I have responsibility for my parents back there. It’s been five years which is a big gap for me so I need to complete my study and make a better future.”