Wirawan (Migration) - [2019] AATA 6295

Wirawan (Migration) [2019] AATA 6295 (17 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gd Mas Agus Wirawan
CASE NUMBER:  1718496
HOME AFFAIRS REFERENCE(S):          BCC2017/1924601
MEMBER:Mark Bishop
DATE:17 September 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 17 September 2019 at 2:38pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –applicant did not comply with condition 8516– applicant did not hold enrolment in a course at the higher education sector – enrolments are in the VET sector– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 189, 198
Migration Regulations 1994 (Cth), cls 573.111, 573.112, 573.231, r 1.40A
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 17 August 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 was represented in relation to the review by his registered migration agent.
The applicant provided a copy of the decision record to the Tribunal.
The applicant did not appear before the Tribunal. On 17 September 2019 the applicant advised the Tribunal in writing neither he nor his Migration Agent (MA) would attend the scheduled hearing.
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 was 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.…

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 Wirawan (Migration)

Details

AGLC: Wirawan (Migration) [2019] AATA 6295
Case: [2019] AATA 6295
Decision Date: 17 September 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal affirmed the decision to cancel Mr Wirawan's Subclass 573 Higher Education Sector visa. The dispute concerned whether the grounds for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to determine if Mr Wirawan had complied with condition 8516 of his visa, which mandates that a visa holder must continue to satisfy the primary or secondary criteria for the grant of their visa. Specifically, this involved assessing whether Mr Wirawan maintained enrolment in a course of study at the higher education sector, as required by the criteria for his Subclass 573 visa. The Tribunal also had to consider whether, having found a ground for cancellation, it was appropriate to exercise the discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal reasoned that Mr Wirawan had breached condition 8516 because his enrolment was no longer in a course prescribed for the Subclass 573 visa, and his future enrolments were in the VET sector, not the higher education sector. The Tribunal found that the applicant did not provide sufficient information to warrant exercising discretion against cancellation, noting the lack of response to the Notice of Intention to Consider Cancellation and the absence of written submissions. The Tribunal concluded that the applicant's stated intention at the time of application did not outweigh the breach, and while there were no other breaches, the length of the breach was significant. The Tribunal also found that the applicant had not demonstrated any significant hardship that would result from cancellation.

Consequently, the Tribunal affirmed the decision to cancel Mr Wirawan's Subclass 573 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 was 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 made the following findings:·According to PRISMS the visa holder was no longer enrolled in a course of study prescribed for Student Higher education Sector (subclass 573) visa;·According to PRISMS the visa holder was not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister made under the relevant instrument;·The visa holder no longer satisfied either subclauses 573.231 or 573.223(1A) and had not complied with condition 8516;

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

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 the power to cancel the visa should be exercised.Consideration of discretion 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 The applicant came to Australia as the holder of a subclass 573 visa to study in the higher education sector. The delegate made a finding the applicant did not hold enrolment in a course at the higher education sector. The applicant did not meet the requirements of condition 8516 attached to his student visa. The Tribunal places little weight on this information towards not cancelling his visa.The extent of compliance with visa conditions The Tribunal is satisfied the applicant’s stated intention at the time of his visa application does not constitute a reason not to cancel his visa. 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.Degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant did not provide a response to the NOICC. The applicant did not provide a written submission to the Tribunal. The applicant if required to depart Australia will be eligible to apply for a Bridging visa E which may allow him to remain lawfully in Australia so that he may finalise any outstanding matters. If the applicant’s visa is cancelled he will become an unlawful non-citizen and may be held for detention under section 189 and removed under section 198 of the migration Act. In addition the applicant will be subject to s.48 of the Act which means that he will have limited options to apply for further visas to Australia. Excluding the above he Tribunal is unable to determine that the applicant will suffer any degree of hardship that may be caused (financial, psychological, emotional or other hardship) by a return to his home country.Circumstances in which ground of cancellation arose The applicant does not hold enrolment in a course at the higher education level. Future enrolments are in the VET sector. The applicant did not respond to the NOICC. The applicant did not provide a written submission to the Tribunal. There are no other circumstances under the grounds of cancellation that provide a reason not to cancel the visa.Past and present behaviour of the visa holder towards the department