WEI (Migration) - [2019] AATA 5967

WEI (Migration) [2019] AATA 5967 (3 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms YAHONG WEI
CASE NUMBER:  1714706
HOME AFFAIRS REFERENCE(S):          BCC2017/1504506
MEMBER:Mark Bishop
DATE:3 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 03 October 2019 at 8:37am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – applicant ceased enrolment – applicant no longer continued to satisfy visa conditions – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cls 573.111, 573.223, 573.231; Schedule 8; Condition 8516; r 1.40
CASES
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 June 2017 made by a delegate of the Minister for Immigration and Border Protection 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 was no longer enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas. 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 did not appear before the Tribunal.
The applicant provided a copy of the decision record to the Tribunal.
On 9 September 2019 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 3 October 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
No response to the hearing invitation was received. However the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(4) the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The applicant did not respond to the invitation to attend a hearing.
The applicant did not provide any information or documents to the Tribunal as…

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: WEI (Migration) [2019] AATA 5967
Case: [2019] AATA 5967
Decision Date: 3 October 2019

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector, held by the applicant. The applicant had ceased enrolment in a registered higher education course, leading to the cancellation of her visa on the grounds that she no longer satisfied the conditions of her visa. The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, specifically concerning the applicant's non-compliance with visa condition 8516. This condition requires a visa holder to continue to satisfy the primary or secondary criteria for the grant of their visa. The Tribunal also had to consider whether, having found a ground for cancellation, it should exercise its discretion to cancel the visa.

The Tribunal reasoned that condition 8516 required the applicant to maintain enrolment in a course of study for which the visa was granted. Evidence indicated that the applicant had ceased enrolment in her Bachelor of Design in Architecture course on 21 September 2015 and had not held enrolment in a specified course since that date. The applicant had also failed to respond to a Notice of Intention to Consider Cancellation. The Tribunal found that this constituted a breach of condition 8516. In considering the exercise of discretion, the Tribunal gave little weight to the applicant's stated purpose of study, given her lack of enrolment and failure to respond to the NOICC. The Tribunal also noted that while there were no other breaches, the length of the non-compliance was significant.

The Tribunal concluded that the ground for cancellation was established and that, considering all the circumstances, the visa should be cancelled. Accordingly, the Tribunal affirmed the decision to cancel the applicant’s Subclass 573 Higher Education Sector 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 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). 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?s.116(1)(b) - non-compliance with conditions 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 a visa holder continue to satisfy the primary or secondary criteria for the grant of a visa. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 12/037. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 12/037. The delegate stated the applicant was notified of the intention to consider cancellation (NOICC) on 5 June 2016. The applicant did not respond. The applicant did not provide reasons why the visa should not be cancelled. The applicant did not advise if she agreed there was non-compliance. The delegate stated the PRISMS record of the applicant indicated the applicant to be enrolled in Bachelor of Design in Architecture [044179J] on 21 September 2015 and she has not held enrolment in a course of study specified for Student Higher Education Sector (subclass 573) visas since that date.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.Mark BishopMember

Ratio Decidendi

Legal Principle Established

Based on the above information the Tribunal is satisfied that there is a ground for cancellation of the applicant’s visa under paragraph(s) s116(1)(b) breach of condition - 8516 of the Act.Consideration of the discretion to cancel the visa Having found that the applicant has not complied with a condition of the visa, 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’The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia As part of the application process the applicant advised that her intended purpose of stay in Australia was to study at the higher education sector. The delegate made a finding the applicant had not enrolled in a registered course since 21 September 2015 and had not responded to the NOICC. Therefore the Tribunal gives little weight to this consideration in the applicant’s favour.The extent of compliance with visa conditions The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) for the purpose of study. The applicant ceased to be enrolled in Bachelor of Design in Architecture [044179J] on 21 September 2015 and she has not held enrolment in a course of study specified for Student Higher Education Sector (subclass 573) visas since that date. The Tribunal gives this consideration little weight in the applicant’s favour. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal finds the length of the breach significant in terms of the usual time period of study. As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.Circumstances in which the ground for cancellation arose The delegate was satisfied the applicant met the requirements of subclauses 573.223(1A) or 573.231 and granted her the Student Higher Education Sector (subclass 573) visa on 28 January 2015, with condition 8516 attached, with the visa valid until 15 March 2019. The PRISMS record of the applicant as outlined in the decision record showed the applicant ceased to be enrolled in Bachelor of Design in Architecture [044179J] on 21 September 2015 and she has not held enrolment in a course of study specified for Student Higher Education Sector (subclass 573) visas since that date. Therefore, it appears the applicant is no longer enrolled in a bachelor’s degree or master’s degree course and she is not enrolled in a course of study that is a principal course of a type specified for Student Higher Education Sector (subclass 573) visas by the Minister in an instrument made under regulation 1.40A.