SONG (Migration) - [2019] AATA 2797

SONG (Migration) [2019] AATA 2797 (1 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms YIWEN SONG
CASE NUMBER:  1702364
HOME AFFAIRS REFERENCE(S):           BCC2016/3271455
MEMBER:Mr S Norman
DATE:1 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 01 April 2019 at 12:00pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 573 Higher Education Sector – not enrolled in appropriate course of study – changed from higher education course to vocational education course – no genuine intention to study – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(1)(b), 362B
Migration Regulations 1994, Schedule 8, condition 8516, r 1.40A, cls 573.231, 573.223(1A), PIC 4023
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 3 February 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(1)(b) of the Migration Act 1958 (the Act). The delegate cancelled the visa on the basis that the applicant was determined to have breached condition 8516. 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 Department delegate’s decision was lodged with the Tribunal.
By letter dated 19 February 2019, the Tribunal wrote to the applicant (by email to her authorised recipient) advising that it had considered all the material before it relating to her application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 1 April 2019. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice. The Tribunal also issued the applicant two hearing reminder texts, shortly prior to the scheduled hearing.
The applicant did not appear before the Tribunal on the day and at the time and place at which her hearing was scheduled. Neither did she otherwise reply to the Tribunal’s hearing invitation letter (as she was requested).
In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking further action to enable the applicant to appear before it.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s Student visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8516 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
Did the applicant comply with Condition 8202?
Condition 8516 requires…

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 SONG (Migration)

Details

AGLC: SONG (Migration) [2019] AATA 2797
Case: [2019] AATA 2797
Decision Date: 1 April 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of SONG (Migration), concerning the cancellation of the applicant's Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa. The dispute arose when the applicant, who had been granted a visa to study a higher education course, changed her enrolment to a vocational education and training (VET) sector level course, which was not appropriate for her visa subclass.

The Tribunal was required to determine whether the applicant had breached condition 8516 of the Migration Regulations 1994, which mandates that a visa holder must continue to satisfy the criteria for the grant of their visa. Specifically, the Tribunal needed to ascertain if the applicant's enrolment in a VET sector course meant she no longer met the requirements for a Subclass 573 visa, thereby justifying the cancellation of her visa under section 116(1) of the Migration Act 1958.

The Tribunal reasoned that condition 8516 requires a student visa holder to maintain enrolment in a course of study appropriate to the subclass of visa granted. Evidence indicated that the applicant had withdrawn from her higher education course and enrolled in a Diploma of Business, a VET level qualification. The Tribunal found that this change in enrolment meant the applicant had not maintained enrolment in a course of study that satisfied the criteria for her Subclass 573 visa. Consequently, the Tribunal concluded that the applicant had breached condition 8516 and that the decision to cancel her visa should be affirmed.

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 Student visa should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8516 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled. Did the applicant comply with Condition 8202? 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. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 7 June 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 4 January 2017,[1] the applicant was advised that information on the Provider Registration and International Student Management Systems (PRISMS), indicated she was no longer enrolled in a Bachelor’s degree or a Masters degree course and therefore, she was not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under r.1.40A. [1] Department – folio 20. In the NOICC, the delegate also referred the applicant to cl.573.231 and cl.573.223(1A). After noting the applicant was granted the visa with condition 8516 attached, and that it appeared she may have breached cl.573.231 or cl.573.223(1A); the delegate advised the applicant it appeared her Student visa may be cancelled pursuant to s.116(1)(b) of the Act. The delegate also noted that after being in Australia for a period of 13 months, the applicant had withdrawn from her higher education level course and obtained a new enrolment at the Vocational Education and Training (VET) Sector level. The applicant had pursued VET sector level study but this was not sufficient for the Higher Education TU - 573 Student visa which she had been granted. The delegate also noted that on 14/10/2016, a COE was created for a Diploma of Business. As noted by the delegate, the applicant was granted her Higher Education Student visa, with streamlined Student visa processing arrangements. She was therefore, required to provide less evidentiary information due to her being considered a lower immigration risk. After then noting they were unable to find evidence the applicant had applied for a course appropriate to the Higher Education level Student visa she had been granted, the delegate was satisfied the applicant had breached condition 8516 (as the applicant had not continued to be a person who would satisfy the primary or secondary criteria for the grant of the visa) and that her visa may be cancelled pursuant to s.116(1)(b) of the Act. The Department delegate also recorded that the applicant had not responded to the NOICC. That being said, and relevant to this decision, condition 8516 requires that an 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 met cl.573.231. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type 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.

Decision

Reasons for decision

After then 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 Class TU visa.Mr S Norman Member

Ratio Decidendi

Legal Principle Established

Based on the evidence before the Tribunal, the applicant has not maintained enrolment in an appropriate course of study. Accordingly, the applicant has not complied with condition 8516. Consideration of the discretion to cancel the visa 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’. Regarding the purpose for the applicant’s travel to and stay in Australia, the delegate also noted the applicant was granted the Student visa to study: ·Bachelor of Arts (Media & Communications) – subsequently cancelled ·University of Sydney Foundation Program – Standard Course – finished 26/05/2015 The evidence before the Tribunal included that after being in Australia for a period of around 13 months, the applicant had withdrawn from her higher education level course and obtained a new enrolment at the Vocational Education and Training (VET) Sector level. The applicant then pursued VET sector level study but this was not sufficient for the Higher Education TU - 573 Student visa which she had been granted. The Tribunal also notes that on 14/10/2016, a COE was created for a Diploma of Business (also a VET level course). That being said, based on the evidence before it, the Tribunal is not satisfied the applicant now intends to reside in Australia for the purpose of study. Regarding the extent of compliance with visa conditions, the applicant had breached condition 8516 of her Student visa as she failed to maintain enrolment in a registered course of study. Further, at the time of their decision, the delegate was unable to find evidence the applicant had applied for a course appropriate to the Higher Education level Student visa she had been granted (and the Tribunal accepts this to be correct). The Tribunal believes this breach to be significant. Regarding the degree of hardship the applicant or her family may suffer if her visa is cancelled, as noted by the delegate the applicant did not respond to the NOICC. However, if her visa is cancelled the Tribunal proposes to find this may result in some limited hardship for her or her family. Regarding the circumstances in which the ground for cancellation arose, same arose when the applicant failed to maintain her enrolment in a registered course of study appropriate for her Higher Education Student visa. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.