THIYAGARAJAH (Migration) - [2020] AATA 559

THIYAGARAJAH (Migration) [2020] AATA 559 (24 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Niruban THIYAGARAJAH
CASE NUMBER:  1809279
HOME AFFAIRS REFERENCE(S):          BCC2017/4353172
MEMBER:L. Symons
DATE:24 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 24 February 2020 at 2:06pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – gap in studies – non-payment of fees and non-completion of course – mother’s illness and brother’s change of job – dates of mother’s illness do not correlate to gaps in studies – needed to work for money to pay fees – no approach to education provider or department – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(fa)(i), 359AA
CASE
MIMA v Hou [2002] FCA 574
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 29 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(fa) on the basis that the applicant was not, or was likely not to be, a genuine student. On 4 April 2018, he applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 11 December 2019 to give evidence and present arguments.
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 affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
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(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?
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…

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: THIYAGARAJAH (Migration) [2020] AATA 559
Case: [2020] AATA 559
Decision Date: 24 February 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of the applicant's Student (Temporary) (Class TU) visa, subclass 500. The dispute arose when the delegate of the Minister decided to cancel the applicant's visa on the grounds that he was not a genuine student. The applicant sought review of this decision.

The Tribunal was required to determine whether the ground for cancellation existed, specifically whether the applicant was a genuine student as required by section 116(1)(fa)(i) of the Migration Act 1958 (Cth). The Tribunal also had to consider whether, having found the ground for cancellation to be made out, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal reasoned that the applicant had not demonstrated he was a genuine student. While the applicant provided a medical certificate for his mother's illness and stated this caused him to be unable to concentrate on his studies, the dates of her illness did not fully correlate with the significant gap in his studies. Furthermore, the applicant did not approach his education provider or the Department to explain his situation. The Tribunal found that the applicant had not enrolled in a registered course of study for a considerable period and his subsequent enrolment was also cancelled. The Tribunal concluded that the grounds for cancelling the visa outweighed the grounds for not cancelling it.

The Tribunal affirmed the decision to cancel the applicant's Student 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 AND FINDINGS 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(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? 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]). In the present case, the applicant was granted a Student visa by the Department of Immigration (the Department) on 13 December 2016. On 8 March 2018, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled. In his response dated 22 March 2018, the applicant provided details as to why his Student visa should not be cancelled. He stated that the reason there was a gap in his studies was beyond his control. He stated that his mother was very sick in 2017 due to family problems. He stated that she was suffering from depression and anxiety and he was worried. He stated that due to her situation and family issues he was not able to concentrate on his studies during that period. He stated that he was not able to tell her because she was already suffering from depression. He stated that he wanted to return to Sri Lanka and visit her but she told him not to. He stated that he was unable to study or concentrate on anything. The applicant provided the Department with a Medical Certificate dated 2 October 2017 which indicates that Mrs Shiyamala Thiyagarajah was under treatment for mixed anxiety and a depressive disorder, rest was recommended from 2 September 2017 to 29 September 2017 and she was fit to resume work from 30 September 2017. He also submitted a letter from Hannay International College dated 29 January 2018 which indicates that he was enrolled in a Diploma of Hospitality that was offered from 15 January 2018 to 10 January 2020. The delegate cancelled his Student visa on 29 March 2018 on the basis that he is not a genuine student.

Decision

Reasons for decision

Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the visa should be cancelled. DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.L. SymonsMemberATTACHMENT – 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

On the evidence before it, the Tribunal is satisfied that the applicant is not, or is likely not to be, a genuine student.Consideration of the discretion to cancel the visa Having found that the applicant is not a genuine student, 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’.Purpose of the applicant’s travel and stay in Australia. Did the applicant have a compelling need to travel to or remain in Australia? The applicant’s evidence is that he came to Australia for the purpose of obtaining a Master’s degree. He stated that the plan was for him to apply for permanent residence and get a job in IT. He stated that, as he was unable to satisfy the English language requirements, he was unable to obtain permanent residence. He stated that he will have to return to Sri Lanka. He stated that he wants to obtain a qualification in hotel management before he returns to Sri Lanka. When asked why he did not undertake a hospitality management course in the last 2 years, he responded that he was not sure how long it would take for his application for review to be heard so he just waited. The Tribunal asked the applicant why he did not return to Sri Lanka. He responded that if he returns to Sri Lanka he will have to take over his father’s hotel and has no idea about hotel management. When the Tribunal pointed out that he could learn from his father, he responded that his father took over that business 20 or 30 years ago. He stated that everything has changed now. He stated that if he takes over the business he will want to improve it and needs to understand how the business works. He stated that that is why he stopped studying IT and switched to hotel management. The Tribunal accepts that the applicant’s purpose in coming to Australia was to study. The Tribunal does not accept that that is still his purpose. The Tribunal is not satisfied that he has demonstrated a compelling need to remain in Australia. The Tribunal does not give this consideration any weight in his favour. The applicant was not enrolled in a registered course of study between 1 June 2017 and 14 January 2018. This is a considerable period of time for someone who was here on a Student visa which was subject to various conditions including condition 8202 which required him to be enrolled in a registered course of study. He subsequently enrolled in a Diploma of Hospitality Management from 15 January 2018 to 10 January 2020 but did not seek to pursue those studies and his enrolment in that course was cancelled on 29 June 2018. There is no evidence before the Tribunal to indicate that the applicant has not complied with the other conditions of his Student visa. The Tribunal does not give this consideration any weight in his favour. Degree of hardship that may be caused