Tyagi (Migration) - [2023] AATA 4202

Tyagi (Migration) [2023] AATA 4202 (4 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Suryansh Tyagi
REPRESENTATIVE:  Mr M Shamraiz Mehdi (MARN: 1465452)
CASE NUMBER:  2216008
HOME AFFAIRS REFERENCE(S):          BCC2021/2263670
MEMBER:Christine Kannis
DATE:4 December 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 04 December 2023 at 2:00pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – multiple courses cancelled – applicant working more than 20 hours per week – applicant ceased studies – decision under review affirmed
LEGISLATION
Education Services for Overseas StudentsAct 2000, s 19
Migration Act 1958, ss 48, 116, 140, 189, 198, 359, 362
Migration Regulations 1994, Schedule 8; Condition 8202
CASES
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 25 October 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. On 26 October 2023, the Tribunal sent the applicant an Invitation to Attend a Hearing letter (via his representative) which advised that a MS Teams video hearing had been listed for 4 December 2023 at 12.00 pm (VIC time) . The Invitation informed the applicant that if he was unable to attend the hearing then he should advise the Tribunal as soon as possible. The Invitation advised that if he did not attend the hearing a decision may be made on the review without taking any further action to allow or enable him to appear before the Tribunal or that his application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal. The Invitation also requested the applicant provide all documents on which he intended to rely to support his case by 27 November 2023.
5. No response to the Invitation to Attend a Hearing was received.

On 8 and 27 November 2023, the Tribunal sent the applicant Hearing response reminders (via his representative).
On 28 November 2023, the Tribunal received the following request from the representative:
The applicant has advised that he will not be able to attend the hearing due to his Mental Health issues.
He has requested of it is possible for AAT to reschedule the hearing after 31.12.2023?
On 28 November 2023, The Tribunal advised the representative the postponement had been refused and further advised the following:
A request…

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 Tyagi (Migration)

Details

AGLC: Tyagi (Migration) [2023] AATA 4202
Case: [2023] AATA 4202
Decision Date: 4 December 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered whether to affirm the decision to cancel the applicant's Subclass 500 (Student) visa. The applicant's visa was cancelled on the grounds that they had breached condition 8202 of the Migration Regulations 1994 by failing to maintain enrolment in a full-time registered course.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of their visa. This condition requires a student visa holder to be enrolled full-time in a registered course, maintain that enrolment at an appropriate AQF level, and achieve satisfactory course progress and attendance. The Tribunal was required to determine if the applicant's enrolment status, as recorded in the Provider Registration and International Students Management System (PRISMS), constituted a breach of this condition, and if so, whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had breached condition 8202(2)(a) as their enrolment in a registered course ceased on 3 August 2021, as evidenced by the PRISMS system. This breach did not mandate cancellation under section 116(3) of the Act, allowing the Tribunal to consider its discretion. Despite the applicant's failure to respond to the Notice of Intention to Consider Cancellation or attend the hearing, the Tribunal considered the circumstances, including the applicant's history of multiple course cancellations for reasons such as non-payment of fees and non-commencement of studies. On balance, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Class TU 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 The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (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? On 7 April 2021, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:·be enrolled in a full-time registered course: 8202(2)(a)·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than the course in relation to which the visa was granted: 8202(2)(b)·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii). The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170. In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a full-time registered course. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2] [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act. The information from PRISMS shows that the applicant was not enrolled in a registered course from 3 August 2021. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 3 August 2021 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and 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.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(1) The holder must be enrolled in a full time course of study or training if the holder is:(a)a Defence student; or(b) a Foreign Affairs student; or(c) a secondary exchange student.(2) A holder not covered by subclause (1):(a) must be enrolled in a full time registered course; and(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:(a) is enrolled in a course at the Australian Qualifications Framework level 10; and(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.Consideration of the discretion to cancel the visa 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 his representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. On 17 October 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 3 August 2021 and had therefore failed to comply with condition 8202(2)(a) of his visa. The applicant did not respond to the NOICC. As the applicant did not respond to the NOICC and did not attend the hearing or provide written submissions prior to the hearing, the Tribunal relied on the information contained in the Department’s file including the Decision Record. The applicant’s PRISMS record shows he has completed two courses, a Certificate IV in Information Technology Networking in 2012 and a Foundation Studies Program in 2015. PRISMS shows he has had 18 courses cancelled between 2011 and 2022. The reasons for cancellation included Non-payment of fees and Non-commencement of studies. Relevant to the decision under review, PRISMS show the applicant was enrolled in a Certificate III in Commercial Cookery which was cancelled on 3 August 2021 due to non-payment of fees. He was also enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management both of which were also cancelled on 3 August 2021 for Non-commencement of studies. The delegate stated that on 3 August 2021, the education provider cancelled the applicant’s enrolment in the Certificate III in Commercial Cookery due to ‘Non-payment of fees’. The following comment was recorded on PRISMS: “Student Owes tuition fees of $6000 and missed excessive classes, we have attempted to contact this student several times but have not received any response.” PRISMS further indicates that the visa holder did not access the Complaints and Appeals process. Given the applicant’s failure to attend the hearing the Tribunal was not able to put his PRISMS record to him for his comment or response under s 359AA of the Act. Accordingly, the Tribunal places no weight on the applicant’s PRISMS record save for the enrolments which were cancelled on 3 August 2021. These enrolments were discussed in the NOICC and in the delegate’s decision and the Tribunal considers that the applicant has been given an opportunity to respond to these enrolment cancellations and has not disagreed with the information.Non-disclosure certificate