Abdelhadi (Migration) - [2024] AATA 1657

Abdelhadi (Migration) [2024] AATA 1657 (31 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Sarah Abdelhadi
CASE NUMBER:  2300721
HOME AFFAIRS REFERENCE(S):          BCC2022/3108800
MEMBER:Christine Kannis
DATE:31 May 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 31 May 2024 at 6:48am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 600 (Student) – not enrolled in full-time registered course – previous cancellation of certificate course before successful completion – multiple enrolments and cancellations of diploma and advanced diploma courses for non-payment and non-commencement – mental health and treatment, and COVID restrictions – new enrolment made after receiving department’s initial email – future business plans in home country and no claim of compelling need to remain – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 8, condition 8202(2)(a)
Education Services for Overseas StudentsAct 2000 (Cth), s 19(3)
CASE
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 January 2023 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 her 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.
The applicant appeared before the Tribunal by MS Teams on 21 May 2024 to give evidence and present arguments.
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 25 May 2020, 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…

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 Abdelhadi (Migration)

Details

AGLC: Abdelhadi (Migration) [2024] AATA 1657
Case: [2024] AATA 1657
Decision Date: 31 May 2024

CaseChat Overview and Summary

This matter concerned an appeal by Ms. Abdelhadi against the cancellation of her Subclass 500 (Student) visa. The Department of Home Affairs had initiated cancellation proceedings on the grounds that Ms. Abdelhadi had failed to maintain enrolment in a registered full-time course, thereby breaching visa condition 8202(2)(a) of the Migration Regulations 1994. The Administrative Appeals Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal considered whether the applicant had failed to comply with the requirement to be enrolled in a full-time registered course. Ms. Abdelhadi had a history of multiple course enrolments and cancellations, including a previous certificate course and subsequent diploma and advanced diploma courses, for reasons including non-payment and non-commencement. The Tribunal also had regard to the applicant's submissions concerning her mental health, the impact of COVID-19 restrictions, and her future business plans in her home country.

In its reasoning, the Tribunal found that the ground for cancellation under s 116(1)(b) of the Migration Act 1958 was established. While acknowledging the significant impact of visa cancellation, the Tribunal, after balancing all the circumstances, concluded that the discretion to cancel the visa should be exercised. The Tribunal affirmed the decision to cancel Ms. Abdelhadi's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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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 matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. On 25 August 2022, the Department of Home Affairs Character and Cancellation Branch sent the applicant an email regarding verification of her contact details and she responded on 26 August 2022. On 22 November 2022, the Department of Home Affairs (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course from 16 June 2021 to 28 August 2022 and had therefore failed to comply with condition 8202(2)(a) of her visa. On 7 December 2022, the applicant responded to the NOICC via her migration agent and provided the following information:·She arrived in Australia in November 2016 as the holder of a Subclass 417 (Working Holiday) visa and complied with the visa conditions.·She was granted her first Subclass 500 (Student) visa on 13 November 2018 to study a Certificate IV in Leadership and Management which she successfully completed on 11 December 2019.·She decided to undertake a Diploma and Advanced Diploma in Leadership and Management in November 2020.·She has a history of long-term anxiety disorder. Her current medications for anxiety disorder include diazepam, escitalopram and Inderal propranolol.·During 2020 and 2021 she was adversely affected by the COVID-19 pandemic. She was in a bad mental state with constant fear and anxiety. During the lockdown she lost her work, exhausted savings and had no other means to pay rent and almost became homeless. This triggered extreme anxiety, panic and constant fear. She was not able to focus on studies as her mental state was deteriorating. ·She was out of work, out of money and could not afford to pay tuition fees that resulted in cancellation of her enrolment. The circumstances were beyond her control.·She had no intention of breaching her visa conditions. Since her arrival in Australia she always intended to comply with conditions of her visa.·Her intention to stay in Australia temporarily for study purposes is genuine. She is looking forward to completing the diploma ad advanced diploma courses to enhance her skills before returning to France. Her plan is to open a retail clothing business with her sisters in France to bring back the Australia beach fashion style with a French touch. ·Cancellation of the visa would significantly limit her ability to remain in Australia which would lead to significant emotional hardship for her and her Australian partner.