Singh (Migration) - [2018] AATA 5471

Singh (Migration) [2018] AATA 5471 (16 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Manpreet Singh
CASE NUMBER:  1621136
HOME AFFAIRS REFERENCE(S):           BCC2016/3312975
MEMBER:Melissa McAdam
DATE:16 November 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 16 November 2018 at 12:12pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – did not commence course – not enrolled in registered course – not genuine student – breached working conditions – family illness – no compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, 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 7 December 2016 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 was represented in relation to the review by his registered migration agent.
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 held a Subclass TU573 Student visa, with expiry date 15 March 2018.
On 11 November 2016 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of her Student visa, inviting him to comment on a possible breach of s.116(1)(fa)(i) of the Act.
The NOICC stated that the Department’s records indicated that the education provider, University of Canberra College, cancelled the applicant’s UC English Language Course because of his failure to commence the course, resulting in the cancellation of his Diploma of Business and Bachelor of Business Administration courses. The NOICC stated that the applicant did not study in a registered course for one year, between 3 October 2015 and 3 October 2016.
On 24 November 2016 the applicant’s Agent wrote to the department stating that the applicant failed his study in Australia because he found it very hard. He successfully completed the UC English Language Programme on 2 October 2015. He then wanted to change college but could not get admission anywhere because his CoE was cancelled. Finally the GCA college enrolled him and he is currently studying an Advanced Diploma of Leadership and Management, which commenced on 4 October 2016 and is due to finish on 15 September 2017. He is performing well in his study.
On 7 December 2016 the delegate cancelled the visa on the basis that the applicant was not a genuine student.
The applicant submitted a copy of the delegate’s decision to the Tribunal. The decision detailed the following:
·The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass…

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 5471
Case: [2018] AATA 5471
Decision Date: 16 November 2018

CaseChat Overview and Summary

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

The Tribunal considered whether Mr Singh was a genuine student, as defined by section 116(1)(fa)(i) of the Act and elaborated upon in *MIMA v Hou* [2002] FCA 574. This involved assessing whether Mr Singh had conducted himself as a genuine student, even if he had technically complied with visa conditions. The Tribunal also had regard to prescribed matters under regulation 2.43 of the Migration Regulations 1994, including whether his participation in a course of study had been deferred or suspended due to his conduct, circumstances other than compassionate or compelling ones, or fraudulent or misrepresented circumstances.

In its reasoning, the Tribunal noted that Mr Singh had not commenced his course and had not been enrolled in a registered course for a substantial period. While accepting that Mr Singh's father had undergone surgery, the Tribunal found that this did not constitute a compelling need for Mr Singh to remain in Australia, particularly as his father continued to financially support his studies. Furthermore, Mr Singh admitted to breaching his visa condition by working more than 20 hours per week. The Tribunal concluded that these factors weighed against setting aside the cancellation.

Ultimately, the Tribunal affirmed the decision to cancel Mr Singh's visa, finding that the circumstances as a whole supported the cancellation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 12 November 2018 the applicant’s Agent forwarded the following document copies to the Tribunal:i.The biodata pages of his Indian passport.ii.A Departmental Confirmation of Enrolment (CoE) for the applicant in the University of Canberra, dated 7 January 2015.iii.A UC College Certificate of Attainment in ‘English for Academic Purposes’. He commenced the course on 11 May 2015 and completed it on 2 October 2015.iv.A UC College Assessment Report for Session 4 of 2015 in ‘English for Academic purposes’ recording that the applicant’s ‘Final Percentage’ was 57.7%, below the ‘minimum score required’ of ‘60%’.v.A UC College Assessment Report for Session 3 of 2015 in ‘English for Academic purposes’ recording that the applicant’s ‘Final Percentage’ was 60.9%, above the ‘minimum score required’ of ‘60%’.vi.A letter of offer of enrolment at the Academy of Management and Science for a full-time course in Commercial Cookery and Diploma of Hospitality, commencing in April 2016.vii.The applicant’s Senior Secondary Examination Certificate from the Punjab School Education Board, dated 18 May 2013.viii.An undated letter from Dr Shashi Jindal, Chief Cardiovascular and Thoracic Surgeon, Ivy Hospital, Mohali in Punjab. The writer confirms that Mr Shangara Singh was admitted to the hospital on 27 July 2015, underwent bypass surgery on 10 August 2015, and was discharged on 3 December 2015.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.

Decision

Reasons for decision

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.Melissa McAdamMemberATTACHMENT – 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

As that ground does not require mandatory cancellation under s.116(3), the Tribunal will proceed to consider whether the power to cancel the visa should be exercised.Consideration of discretion Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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 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’s stated purpose to travel to and stay in Australia, was to study. The applicant has not been studying in Australia for a substantial period of time. The applicant has not claimed he has a compelling need to remain in Australia. Nor does the information and evidence before the Tribunal indicate any compelling need for the applicant to remain here. He stated he needed to remain in Australia so as not to let his parents or himself down. While the Tribunal accepts this may be how the applicant feels, it does not equate to a compelling need to remain. The Tribunal considers this matter does not support the setting aside of the visa cancellation.The extent of compliance with visa conditions The applicant stated at hearing that he had breached his visa condition to not work more than 20 hours a week, by working 35 hours a week. The Tribunal considers this factor weighs against setting aside of the visa cancellation.The degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant has presented information that the cancellation will cause him psychological or emotional hardship, in that he will feel he has let his parents and himself down. The Tribunal accepts this would be distressing for the applicant but its significance is substantially outweighed by the applicant’s lack of efforts to study and comply with his visa conditions in Australia.The circumstances in which ground of cancellation arose The applicant provided evidence at hearing that he did not continue his studies in Australia because his father became ill in July 2015 and had heart surgery in October 2015, remaining in hospital until December 2015. The applicant also stated that he felt compelled to give up his studies so he could work to earn money to pay for his father’s discharge from hospital. The Tribunal has located information which indicates that it is not an uncommon practice in some Indian hospitals for a patient to be kept at hospital, against their will, pending the payment of the hospital bill, with some force being used to stop the discharge of the patient.[1] The Tribunal therefore gives the benefit of the doubt to the applicant that this happened to his father. However the Tribunal notes the applicant was able to work 20 hours a week on his Student visa and so was able to continue studying while working to help his father. The Tribunal notes further the applicant’s evidence that his father has continued to support the applicant’s studies financially while the applicant has been in Australia. This does not indicate that the applicant’s father required money from the applicant.[1] See e.g.: The Economic Times, 2017, “Hospitals Can't Hold Patients Hostage For Unpaid Bills: Delhi High Court”, 26 April, Indian Express, 2016, “Mumbai: Confined in hospital for 50 days for not paying bill, patient finally discharged”, 28 December. Chatham House Research Paper, 2017, ‘Hospital Detentions for Non-payment of Fees: A Denial of Rights and Dignity’, December.