Singh (Migration) - [2019] AATA 1068

Singh (Migration) [2019] AATA 1068 (14 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Arshdeep Singh
CASE NUMBER:  1710481
HOME AFFAIRS REFERENCE(S):           BCC2017/607119
MEMBER:Stephen Witts
DATE:14 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 14 March 2019 at 9:22am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – genuine student – study record – only completed one course since arrival – study gap of over eight months – did not study in a higher education course of study – consideration of discretion – health issues – drug addiction – significant breach – 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 9 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 7 March 2019 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
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…

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 1068
Case: [2019] AATA 1068
Decision Date: 14 March 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Singh, who sought review of the Minister's decision to cancel his Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute centred on whether Mr. Singh was a "genuine student" as required by the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was to determine if the ground for cancellation under s 116(1)(fa)(i) of the Act, namely that Mr. Singh was not a genuine student, was made out. If this ground 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 was established. Mr. Singh's study record demonstrated a pattern of cancelled enrolments due to non-commencement, unsatisfactory attendance, and non-payment of fees, with only one course completed since his arrival in Australia in December 2014. This, coupled with a significant gap in his studies and a lack of compelling need to remain in Australia, led the Tribunal to conclude he was not a genuine student. While acknowledging Mr. Singh's stated issues with drug addiction and depression, the Tribunal found these did not create a compelling need to remain in Australia, as he could address these matters in his home country.

Consequently, the Tribunal affirmed the decision to cancel Mr. Singh's visa.

Orders

Orders of the court

Full text does not contain this section.

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, provided the Tribunal by the applicant, the applicant was granted his visa and arrived in Australia on 2 December 2014. According to the delegate’s decision record:a)on 12 January 2015 the applicant’s enrolment in a Diploma of Business was cancelled by the educational institution due to his change in student enrolmentb)on 3 August 2015 the applicant’s enrolment in a Certificate IV in Business Administration was cancelled by the educational institution due to unsatisfactory attendancec)on 3 August 2015 the applicant’s enrolment in a Diploma of Business was cancelled by the educational institution due to non-commencement of studiesd)on 6 October 2015 the applicant’s enrolment in a Bachelor of Business (Information Systems Management) was cancelled by the educational institution due to non-commencement of studiese)on 25 March 2016 the applicant completed a Certificate IV in Accountingf)on 18 April 2016 the applicant’s enrolment in a Diploma of Accounting was cancelled by the educational institution for non-commencement of studiesg)on 26 July 2016 the applicant’s enrolment in a Diploma of Leadership and Management was cancelled by the educational institution for non-payment of feesh)on 21 February 2017 the applicant was approved enrolment for a Certificate III in Painting and Decorating which began on 15 March 2017i)on 21 February 2017 the applicant was approved enrolment in a Diploma of Building and Construction (Management) which was due to commence on 15 June 2018

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)(i) 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 Tribunal.·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 As above the applicant stated that he first came to Australia on a student visa to to to study after he completed high school as he wanted to study overseas, specifically in the field of business. The applicant stated that he has a mother and father back in his home country and a sister in Australia. He stated that at first he lived with his sister but now lives by himself renting in Melbourne. He stated that he is not sure what kind of visa his sister is currently on but stated that she originally came here on a tourist visa and is now living here with her husband. The applicant stated that he is not working at this present point of time but he last worked in 2016 doing painting jobs and also working in a 7/11 store. He stated that since his arrival here he has not travelled home to India or anywhere else outside Australia. The applicant stated that he was managing himself financially here with assistance from his sister and his sister’s husband. When asked by the Tribunal to outline what compelling need he would have to remain in Australia on student visas the applicant responded that he wants to study in Australia now that he is no longer affected by a drug addiction and then he would return home once he has finished his painting courses here in Australia. He stated that he did not consider studying back in his home country. He stated that at this point of time he couldn’t face his family because of his poor study record here and that his mother had had a heart attack which, he said, came about because his mother was worried about his situation here. He stated that his parents did not know specifically about his drug habit but that he was now no longer affected by this addiction. He also stated that his mother is in reasonable health now although the family is under some stress. The Tribunal, although acknowledging that the applicant may have suffered from depression during his time here in Australia, although it is noted by the Tribunal that no medical evidence was actually provided to this effect, and has been suffering from drug addiction, the Tribunal finds that the applicant could return home at any time and spend time with his family and put his affairs in order and either study in India or engage in some other work activity. The Tribunal therefore finds that the applicant does not have a compelling need to remain in Australia on student visas.