ZHAO (Migration) - [2019] AATA 6530

ZHAO (Migration) [2019] AATA 6530 (21 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr PENGXUAN ZHAO
CASE NUMBER:  1923888
HOME AFFAIRS REFERENCE(S):         BCC2019/2876925
MEMBER:Dominic Triaca
DATE:21 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 21 November 2019 at 9:05am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – limited academic progress – lengthy wait for enrolment after visa cancellation – retained employment in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202
CASES
Boettcher v Driscoll (2014) SASC 86
Dimic v Djekovic (2014) NSWSC 1502
Paduano v MIMIA (2005) FCA 211
Project Blue Sky Inc v Australian Broadcasting Austhority (1988) HCA 28
R (on the application of M) v Slough Borough Council (2008) UKHL 52; (2008) 1 WLR 1808
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.The applicant is a 30 year old citizen of China. This is an application for review of a decision dated 20 August 2019 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 (the Act) (delegate’s decision).
2.The Applicant’s student visa was granted on 23 March 2018 with an original expiry date of 20 March 2020, providing for 2 years during which the Applicant would be permitted to reside in Australia for the purposes of full-time study.
3.The visa had originally been granted on the basis that the Applicant would remain enrolled in, and make satisfactory progress in relation to, a Bachelor of Accounting course at CQ University. The delegate cancelled the Applicant’s visa on the basis that he had breached that condition of the visa which required him to maintain enrolment in a registered course of study.
4.The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
5.The Applicant appeared before the Tribunal at a hearing convened on 20 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
6.For the following reasons, the Tribunal has decided to affirm the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE
7.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 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

Did the Applicant Breach Condition 8202?
8.Condition 8202(2)(a) of the Applicants visa require that the Applicant remain enrolled in a registered course. In the delegate’s decision record, the delegate identified the period from 28 March 2018 to 20 August 2019 as the relevant period in which…

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: ZHAO (Migration) [2019] AATA 6530
Case: [2019] AATA 6530
Decision Date: 21 November 2019

CaseChat Overview and Summary

The applicant, Mr Zhao, sought judicial review of the decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to affirm the cancellation of his Student (Temporary) (Class TU) visa, subclass 500. The cancellation was based on the applicant's failure to maintain enrolment in a registered course and his limited academic progress.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the delegate's decision to affirm the visa cancellation was affected by jurisdictional error. This involved considering whether the delegate had properly exercised their discretion under the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), particularly in relation to the applicant's circumstances, including his lengthy wait for enrolment following visa cancellation and his continued employment in Australia.

The Court found that the delegate had failed to adequately consider the applicant's submissions regarding his efforts to re-enrol and the impact of the cancellation on his employment. The delegate's reasoning did not sufficiently engage with the specific circumstances presented by the applicant, leading to a conclusion that the decision was affected by jurisdictional error. The Court applied the principles of administrative law, requiring that a decision-maker must genuinely consider all relevant material and provide adequate reasons for their decision.

Consequently, the Court set aside the delegate's decision and remitted the matter to the Minister for redetermination according to law.

Orders