Tariq (Migration) - [2020] AATA 855

Tariq (Migration) [2020] AATA 855 (15 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Adeel Tariq
CASE NUMBER:  1924813
HOME AFFAIRS REFERENCE(S):          BCC2019/2357291
MEMBER:David Thompson
DATE:15 March 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 15 March 2020 at 11:26am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – enrolled at lower level than visa requirement – poor course results and change of subject area – enrolment in lower-level vocational courses – discretion to cancel visa – factors for and against cancellation – intention to study at original level – enrolment in package of courses which will lead to that level – mental health – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), r 1.40A, Schedule 2, cl 573.231, Schedule 8, condition 8516

CASE

Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision dated 30 August 2019 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 had not complied with a condition of his visa, namely, condition 8516 which requires a visa holder to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, 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.
The applicant appeared before the Tribunal on 4 March 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
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 set aside.

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 attached to the applicant’s visa. This condition requires that the visa holder must continue…

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.

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Details

AGLC: Tariq (Migration) [2020] AATA 855
Case: [2020] AATA 855
Decision Date: 15 March 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (the Tribunal) considered the case of Tariq, a holder of a Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The dispute arose from the delegate's decision to cancel Mr Tariq's visa. The cancellation was based on the delegate's assessment that Mr Tariq had failed to meet the visa condition requiring him to be enrolled in a course at the higher education sector level, having instead enrolled in vocational courses at a lower level, and also due to his poor course results and a change in his subject area.

The Tribunal was required to determine whether the delegate had correctly exercised their discretion to cancel Mr Tariq's visa. This involved assessing whether the delegate had properly considered all relevant factors for and against cancellation, including Mr Tariq's intention to study at the original higher education level and his enrolment in a package of courses that would ultimately lead to that level, as well as his mental health.

In its reasoning, the Tribunal found that the delegate had not adequately considered the mitigating factors presented by Mr Tariq. The Tribunal noted that Mr Tariq's enrolment in vocational courses was part of a package designed to enable him to eventually study at the higher education level, and that his poor results and change of subject were influenced by significant mental health challenges. The Tribunal applied the principles of administrative review, requiring a holistic assessment of the circumstances and a balanced consideration of the factors favouring and opposing visa cancellation. The Tribunal concluded that the delegate's decision to cancel the visa was not a proper exercise of discretion.

Consequently, the Tribunal set aside the delegate's decision to cancel Mr Tariq's visa and substituted a decision that the visa not be cancelled.

Orders