SINGH (Migration) - [2018] AATA 5216

SINGH (Migration) [2018] AATA 5216 (7 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr SUKHVIR SINGH
CASE NUMBER:  1707141
DIBP REFERENCE(S):  BCC2017/256896
MEMBER:Stephen Conwell
DATE:7 December 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 07 December 2018 at 11:58am

CATCHWORDS
MIGRATION – cancellation – Subclass 573 Higher Education Sector visa – not a genuine student – not successfully completed a course of study since 2015 – unsatisfactory academic progress – family’s financial issues – no compelling circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 119, 140
Migration Regulations 1994, Schedule 2, r 2.43(1C) and (1D)
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 29 March 2017 made by a delegate of the Minister for Immigration and Border Protection (‘the Department’) to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act). The applicant lodged the Department delegate’s decision with the Tribunal at the time of his application.
The delegate cancelled the visa under s.1161)(fa)(i) of the Act on the basis that the applicant was found not to be 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 6 December 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.
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.1161)(fa)(i) of the Act. 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)(fa)(i) if the Minister or the Tribunal 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…

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) [2018] AATA 5216
Case: [2018] AATA 5216
Decision Date: 7 December 2018

CaseChat Overview and Summary

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Subclass 573 Higher Education Sector visa. The Minister had cancelled the visa under section 116(1)(fa)(i) of the Migration Act 1958 (Cth), on the basis that the applicant was not, or was likely not to be, a genuine student. The applicant had been granted the visa on 22 May 2014 to undertake a Bachelor of Accounting at La Trobe University, commencing on 6 July 2015.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(fa)(i) of the Act was made out, and if so, whether the discretion to cancel the visa should be exercised. The legal issue revolved around whether the applicant's conduct demonstrated that he was not a genuine student, considering his academic performance and the stated reasons for his enrolment issues.

The Tribunal reasoned that the applicant had failed to complete any course of study since 30 June 2015 and had failed all subjects in semester 2 of 2016. Furthermore, he was not enrolled for semester 1, 2016, due to non-payment of fees. While acknowledging the applicant's explanation regarding his family's financial difficulties and his father's health issues, the Tribunal found that these circumstances did not satisfy him that the applicant's present purpose for residing in Australia was to study. The Tribunal considered the applicant's substantial failure to maintain enrolment in an appropriate course of study for six months as a significant breach of his visa conditions, and therefore concluded that the ground for cancellation existed and the discretion to cancel the visa should be exercised.

The Tribunal affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector 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.1161)(fa)(i) of the Act. 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)(fa)(i) if the Minister or the Tribunal 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 Minister or Tribunal 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 the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 22 May 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 14 February 2017, the applicant was advised that information before the Department delegate indicated he is not, or is likely not, to be a genuine student. The decision record states that on 14 February 2017 the applicant’s representative (at the time) wrote to the delegate in response to the Department's NOICC in which he did not dispute the grounds for cancellation. The decision record states that the grounds for cancellation were under s.116(1)(fa)(i) because it appeared that the applicant's primary purpose for holding a student visa was not for the purpose of study and he was not, or likely not to be, a genuine student. The delegate noted the applicant had initially applied to study in Australia for a Certificate IV in Accounting leading to a Diploma and Bachelor of Accounting (from 7 July 2014 - 30 June 2017). Based upon information from the Provider Registration and International Student Management System (PRISMS), the delegate found that the applicant:· successfully completed the Certificate IV and Diploma of Accounting courses as planned;· commenced the Bachelor degree of Accounting at La Trobe University on 6 July 2015. However, he failed three out of four subjects in semester 2, 2015;· had failed all his subjects in semester 2, 2016.

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 Subclass 573 Higher Education Sector visa.Stephen ConwellMember

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.1161)(fa)(i) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.Consideration of discretion There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.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 purpose of a student visa is to enable the visa holder to undertake study in Australia. The purpose of the Higher Education visa is to enable the visa holder to undertake study at the higher education level. The applicant confirmed at hearing that the purpose of his travel to and stay in Australia was to study; At hearing the applicant confirmed that his intention in travelling to and residing in Australia was for the purposes of study. However, he agreed that he had failed to complete any course of study in Australia since 30 June 2015. He was also not enrolled for semester 1, 2016 due to non-payment of fees. Based on all the findings herein, the Tribunal is not satisfied the applicant’s present purpose for residing in Australia is to study. The extent of compliance with visa conditions The Tribunal has considered the extent of compliance with visa conditions. The Tribunal believes the failure to maintain enrolment in an appropriate course of study for six months is substantial. The Tribunal finds that the applicant has also breached condition 8516 of his visa. The Tribunal considers the breach to be significant given that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is not undertaking study at the level for which his visa was granted. Although the applicant could not confirm that he had been working within the constraints of his visa conditions, there is no evidence that the applicant has breached any other visa conditions. Tribunal therefore considers this factor to weigh in favour of visa cancellation.Circumstances in which ground of cancellation arose The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of any breach and any reasons for the breach. In his response to the NOICC letter the applicant said that his father worked as a plasterer in Saudi Arabia for a time and he was able to fund the applicant’s studies in Australia. However the applicant’s father had to return to their home country of India possibly because he had lost his job or because his company closed down. Whilst back in India the applicant’s father experienced heart problems and underwent surgery. This led to financial constraints upon the family; in particular, the applicant’s study fees in Australia could not be met. This was the reason for the applicant not being enrolled in study in semester 1, 2016.