Ting (Migration) - [2020] AATA 171

Ting (Migration) [2020] AATA 171 (9 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Meng Kwong Ting (‘First Applicant’)
Mrs Hua Xiao (‘Second Applicant’)
CASE NUMBER:  1913950
HOME AFFAIRS REFERENCE:               BCC2018/6028936
MEMBER:Dr Jason Harkess
DATE:9 January 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the First Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa
The Tribunal has no jurisdiction with respect to the Second Applicant’s application.

Statement made on 09 January 2020 at 3:02pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –lack of enrolment and progress over a substantial period – applicant was not a genuine student – unsatisfactory progress in his studies– poor class attendance record – applicant failed to maintain enrolment in a Diploma-level course – breached condition 8202 – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994 (Cth), r 2.43, Schedule 8

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

The First Applicant is a citizen of Malaysia and is 42 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 27 May 2019 cancelling his Subclass 500 student visa pursuant to s 116(1) of the Migration Act 1958 (Cth) (‘the Act’).

The Second Applicant is a citizen of China and is the spouse of the First Applicant. Her Subclass 500 student visa was cancelled following the delegate’s decision cancelling the First Applicant’s visa. She seeks review of the cancellation of her visa. However, no ‘decision’ was made in relation to her visa. Her visa was automatically cancelled by the operation of law because she held her visa as a member of the family unit of the First Applicant.[1] Accordingly, there is no reviewable decision before the Tribunal relating to the cancellation of the Second Applicant’s visa.
[1] See Migration Act 1994 (Cth), s 140(1), which provides that, ‘[i]f a person’s visa is cancelled under section … 116 …, a visa held by another person because of being a member of the family unit of the person is also cancelled.’

Original Visa Grant

The First Applicant’s visa was granted on 30 May 2018. It was granted because a delegate of the Minister had determined that he met the primary criteria for the grant of a student visa.[2] In particular, the First Applicant was found to have been ‘a genuine applicant for entry and stay as a student’ in Australia.[3] The First Applicant’s student visa had an original expiry date of 15 March 2020. It provided for more than 21 months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study.
[2] The primary criteria for the grant of student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.
[3] Migration Regulations 1994 (Cth), Sch 2, cl 500.212.

The Second Applicant’s student visa…

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: Ting (Migration) [2020] AATA 171
Case: [2020] AATA 171
Decision Date: 9 January 2020

CaseChat Overview and Summary

This matter concerned an appeal by Mr Ting against a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel his Subclass 500 (Student (Temporary)) visa. The cancellation was based on Mr Ting's alleged failure to maintain enrolment and satisfactory progress in his studies, thereby breaching condition 8202 of his visa. The Administrative Appeals Tribunal affirmed the Minister's decision.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal had erred in law in affirming the cancellation of Mr Ting's visa. Specifically, the court was required to consider whether the Tribunal had properly assessed the evidence regarding Mr Ting's enrolment, academic progress, and attendance, and whether it had correctly applied the relevant provisions of the *Migration Act 1958* (Cth) and associated regulations.

The court found that the Tribunal had not erred in law. It was open to the Tribunal, on the evidence before it, to conclude that Mr Ting was not a genuine student, that he had not maintained satisfactory progress in his studies, and that he had a poor class attendance record. The Tribunal's findings were supported by documentary evidence and were within its powers. The court therefore dismissed Mr Ting's appeal.

Orders