THAPA (Migration) - [2020] AATA 511

THAPA (Migration) [2020] AATA 511 (17 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dhurba THAPA
CASE NUMBER:  1828418
HOME AFFAIRS REFERENCE(S):          BCC2018/1503928
MEMBER:Mark O'Loughlin
DATE:17 February 2020
PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 17 February 2020 at 9:43am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) Subclass 573 Higher Education Sector – not enrolled in registered course – applicant cancelled enrolment – need to stay in Australia motivated by work – changed study pathways – no evidence of hardships – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2 cls 573.223, 573.231, r 1.40A
CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1. On 19 September 2018 a delegate of the Minister for Home Affairs decided to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act). The applicant has applied to the Tribunal for a review of that decision.
2. The delegate cancelled the visa under s.116(b) on the basis that the applicant had not complied with condition 8516 of his visa because he had not continued to be a person who would satisfy the visa’s primary criteria. The issue for the Tribunal is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
3.     The applicant appeared before the Tribunal on 6 February 2020 to give evidence and present arguments.
4.     The applicant was represented in relation to the review by his registered migration agent.
5.     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
6. Under s.116 of the Act, the Minister (and thereby a person making a decision on the Minister’s behalf) may cancel a visa if satisfied that certain grounds specified in that provision are made out. If so satisfied, the decision maker must then proceed to consider whether the visa should be cancelled having regard to all the relevant circumstances, which may include matters of government policy.
7.     In undertaking this review the Tribunal has had regard to the applicant’s oral evidence and to the decision of the delegate dated 19^th of September 2018, a copy of which was provided to the Tribunal by the visa holder. Tribunal has also had regard to submissions prepared by the applicant dated 30 January 2020 and annexures thereto including the applicant’s diploma of business certificate, a letter from his employer, the Greenery Cronulla, and confirmations of enrolment (CoE’s) obtained by the applicant on 28 January 2020.
8.     The Tribunal has also had regard to a statement provided by the applicant apparently in response to the notice of intention to consider cancellation and appearing at Folio 16 of the departmental file, and an email sent by the…

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: THAPA (Migration) [2020] AATA 511
Case: [2020] AATA 511
Decision Date: 17 February 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of THAPA concerning the cancellation of a Student (Temporary) (Class TU) Subclass 573 visa. The applicant, Mr. Thapa, had his visa cancelled by the Department of Home Affairs because he was not enrolled in a registered course, a condition of his visa. Mr. Thapa had cancelled his enrolment in his original course and subsequently changed his study pathway, with the Tribunal finding his primary motivation for remaining in Australia was work rather than study.

The central legal issue before the Tribunal was whether the Department's decision to cancel Mr. Thapa's visa was justified under the Migration Act 1958 (Cth). This required the Tribunal to assess whether Mr. Thapa had complied with the conditions of his visa, specifically the requirement to maintain enrolment in a registered course, and whether there were any compelling reasons to set aside the cancellation decision.

The Tribunal affirmed the Department's decision, finding that Mr. Thapa had failed to maintain enrolment in a registered course as required by his visa conditions. It noted that his actions, including cancelling his initial enrolment and changing his study pathway, indicated a lack of genuine commitment to his studies. Furthermore, the Tribunal found no evidence of exceptional circumstances or hardship that would warrant setting aside the cancellation. The applicant's stated motivation for remaining in Australia was primarily work-related, which did not satisfy the purpose of a student visa.

Orders