Sohail (Migration) - [2020] AATA 1227

Sohail (Migration) [2020] AATA 1227 (5 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Abdullah Sohail
CASE NUMBER:  1814739
HOME AFFAIRS REFERENCE(S):          BCC2018/29495
MEMBER:Wendy Banfield
DATE:5 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 05 February 2020 at 1:22pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – remaining an eligible higher degree student – enrolment in a registered Higher Education course ceased – applicant changed to diploma courses – limited academic progress – family bereavements – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cl 573.223; Schedule 8; Condition 8516; r 1.40
CASES
Singh v MIBP [2016] FCA 679
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 15 May 2018 made by a delegate of the Minister for Home Affairs 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)(b) on the basis that the applicant has not complied with a condition of the visa. In accordance with condition 8516 the applicant must continue to be a person who would satisfy the primary criteria for the grant of the 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.
Background
The applicant is a citizen of Pakistan and is currently 28 years old. He came to Australia on 20 January 2016 as the holder of Subclass 573 Student visa. The applicant was enrolled in an Intensive Foundation Program at Macquarie University leading to a Bachelor degree. The applicant did not complete the foundation course and did not progress to a degree. At the time of the hearing, the applicant had enrolled in a Diploma of Business and a Graduate Diploma of Management.
The applicant appeared before the Tribunal on 27 November 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
Prior to the hearing the applicant submitted the following evidence:
· Confirmation of Enrolment Certificate (COE) for a Diploma of Business commencing 25/11/2019 and ending 22/11/2020;
· COE for a Graduate Certificate in Management (Learning) commencing 25/01/2021 and ending 23/01/2022.
The applicant provided evidence to the Department that has also been taken into account in this decision. The submissions consisted the following:
·     Applicant’s written submission dated 30 April 2018;
·     Photo of prescription medicine bottle in the name of the applicant;
·     COE for a Diploma of Information Technology (IT) commencing 08/01/2018 and ending 04/01/2019;
·     Evidence of the applicant’s enrolment in a General English course in 2017;
·     Medical documentation and death certificates in relation to the applicant’s family members;
·     Identity documents for Ahmed Sohail;
·…

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 Sohail (Migration)

Details

AGLC: Sohail (Migration) [2020] AATA 1227
Case: [2020] AATA 1227
Decision Date: 5 February 2020

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Sohail, against the decision of the Minister to cancel his Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The dispute arose because the applicant ceased enrolment in a registered Higher Education course and subsequently enrolled in diploma courses in the vocational education sector, failing to maintain academic progress. The decision was reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out. This required the Tribunal to determine if the applicant had failed to comply with a condition of his visa, specifically condition 8516, which mandates that a visa holder must continue to satisfy the criteria for the grant of their visa. The Tribunal also had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances.

The Tribunal reasoned that condition 8516 required the applicant to maintain enrolment in a higher education course, as was the basis for his Subclass 573 visa. The applicant had enrolled in an Intensive Foundation Program and a Bachelor of Arts – Psychology at Macquarie University but did not complete the foundation course successfully. He subsequently enrolled in a General English course and then a Diploma of Information Technology, which is in the vocational education sector, not higher education. The Tribunal found that the applicant had not complied with the requirement to study higher education, thus satisfying the ground for cancellation under s 116(1)(b). In exercising its discretion, the Tribunal considered the applicant's original intention to study in Australia, his submissions regarding a compelling need to remain, the extent of his compliance with other visa conditions, and the hardship that cancellation might cause. Despite acknowledging the potential hardship and the applicant's initial intention to study, the Tribunal was not satisfied that he had demonstrated a compelling need to remain in Australia and found that the fundamental breach of his student visa conditions weighed against him.

Ultimately, the Tribunal affirmed the decision to cancel the applicant'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)(b). 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)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 was attached to the applicant’s visa. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant is an eligible higher degree student who satisfies cl.573.223(1A), or, if not, is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a Bachelor’s degree, Master’s degree by coursework or, for visa applications made on or after 23 November 2014, an Advanced Diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The applicant’s Student visa had been granted on the basis that he was enrolled in an Intensive Foundation Program and a Bachelor of Arts – Psychology at Macquarie University. Although he began his Foundation course he did not complete it successfully and was unable to proceed to a Bachelor degree. As a result his enrolment in higher education was cancelled. Although it appears the applicant re-enrolled in the Foundation course, he did not progress to a Bachelor degree. The applicant then completed a General English course and at the time his visa was cancelled, he was studying a Diploma of Information Technology (IT) in the vocational education sector. The applicant has therefore not complied with the requirement to study higher education, which was the purpose of the visa grant and was a condition attached to the visa. The applicant did not dispute the Department’s assessment of his study history in its decision record of 15 May 2018 but initially he did not agree there were grounds to cancel his visa. In his evidence at the Tribunal hearing the applicant said his agent was responsible for his enrolment. He claimed he had been advised by his agent to begin a Diploma course and he would then be able to enrol in a degree program. The applicant then agreed that he had enrolled in a course that was not in the higher education sector and when the Tribunal put it to him that in that case, there were grounds to cancel his visa he agreed that was the case. The Tribunal finds that while the applicant may have used the services of an agent to assist him, he is ultimately responsible for ensuring he complies with the conditions attached to his Student visa.

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.Wendy BanfieldMember

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 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 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 arrived in Australia to study a university foundation program and a Bachelor degree. Although the applicant did not maintain enrolment in the higher education sector as required, according to the evidence he commenced his Intensive Foundation Program at Macquarie University. For this reason, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant said degrees from Australia are internationally recognised and are more valuable in his home country than local qualifications. He said his exposure to other people and cultures in Australia are also important, he has faced a lot of challenges but has since settled down and learnt to be independent. The Tribunal has considered the applicant’s submissions and accepts he may wish to remain in Australia and continue studying, however, he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia. · the extent of compliance with visa conditions There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.· degree of hardship that may be caused (financial, psychological, emotional or other hardship) The Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant referred to the difficulties he faced when he first came to Australia and said he would be devastated if he is unable to achieve what he came here to do. The applicant said if he goes back to his home country without a degree his father will not be able to cope with it. He also submitted his plans to expand his father’s restaurant business into a franchise will be affected. The Tribunal accepts there will be a degree of hardship caused as a result of his visa being cancelled and places some weight in his favour in this regard.