Chen (Migration) - [2023] AATA 3781

Chen (Migration) [2023] AATA 3781 (6 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Liujing Chen
CASE NUMBER:  2214719
HOME AFFAIRS REFERENCE(S):          BCC2022/2219279
MEMBER:Christine Kannis
DATE:6 November 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 06 November 2023 at 8:11am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – mental health issues – applicant’s difficulty changing courses – several course cancellations – poor academic progress – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 189, 198, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03
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 5 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 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 on 3 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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 24 April 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 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…

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 Chen (Migration)

Details

AGLC: Chen (Migration) [2023] AATA 3781
Case: [2023] AATA 3781
Decision Date: 6 November 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa held by Ms Chen. The dispute arose because Ms Chen had ceased enrolment in a registered course, thereby failing to comply with condition 8202(2)(a) of her visa. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation, to which Ms Chen responded, detailing significant personal circumstances.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) existed and, if so, whether to exercise its discretion to cancel the visa. The legal issue centred on whether Ms Chen's failure to maintain enrolment constituted a breach of her visa conditions and, if so, whether the mitigating factors she presented warranted a decision not to cancel her visa.

The Tribunal found that the ground for cancellation under s 116(1)(b) was established due to Ms Chen's cessation of enrolment. In considering its discretion, the Tribunal acknowledged Ms Chen's submissions regarding her mental health issues, the pressure from her parents and education agent regarding her course choices, and the impact of the COVID-19 pandemic on her ability to seek and receive timely medical assistance. Despite these circumstances, the Tribunal concluded that, on balance, the visa should be cancelled.

The Tribunal affirmed the decision to cancel Ms Chen'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

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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 15 August 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course from 29 July 2020 and had therefore failed to comply with condition 8202(2)(a) of her visa. Response to NOICC On 26 August 2022, the applicant responded to the NOICC in a submission from her registered migration agent and provided the following information:·She came to Australia in 2015 and studied the University of Western Australia Foundation Program which she finished around the end of 2016.·Between the end of 2016 and 2019, she studied between 2 courses decided by her parents and the education agent, namely Commerce and Built Environment courses. These courses were not her choice of study. As the only child in the family, she reluctantly followed her parents’ choice.·She attended classes between January 2017 until around 2019. She had requested a transfer to a Health Sciences course and Psychology because she was interested in health care and planned to become a Psychologist. The education agent did not allow the transfer and as a result she began to isolate and was not able to catch up on classes. She thought of suicide and started to fail in the majority of classes. ·She became emotionally unstable and one day in February 2019, her depression was so severe that she intentionally rolled down the staircase with the aim to end her life. She felt no one could understand her and she was being forced to study something not of her choice. The fall caused serious injury to her right leg requiring surgery. She immediately flew to China for surgery and treatment. On discharge she returned to Australia in March 2019, with a visit back to China for medical follow-up. ·At this point her request to change course to Human Sciences was still refused by her parents and the education agent. She again enrolled in a Diploma and Degree of Built Environment/Architecture in February 2020. She became depressed with suicidal thoughts after enrolment in these courses. Around the time she commenced the Diploma of Built Environment, COVID-19 occurred and Western Australia was declared a State of Emergency. At this time she was trying to reach out to various medical centres for help, but none could assist as priority was given to managing COVID-19. During these periods, she was not attending classes due to her mental situation, isolation and COVID-19 restrictions. ·The West Australian government began to ease restrictions in July 2020 and she immediately attended a mental health care specialist in August 2020. She was referred to a Clinical Psychologist to manage her depression. She continued medication prescribed by Dr Alex Koh (a mental health GP) which can occasionally cause side effects such as drowsiness and tiredness. ·The sole reason for her absenteeism from classes since August 2020 was because of her mental instability. She was afraid of going back to being suicidal and depressed and meeting people and lecturers in a course she does not like.·Her medical conditions are largely caused by her parents and the education agent, escalated further by the non-availability of medical professionals to treat her depression and mental health during the COVID-19 lockdowns.·She apologises to the Department for her negligence in not complying with condition 8202. She tried numerous times to seek help but COVID-19 pandemic factors, low self-esteem with self-isolation and mental instability limited her reaching out for help.·After receipt of the NOICC, she enrolled in something she has always wanted to study. She had a frank discussion with her parents and received their support to pursue something related to Human Sciences. On 17 August 2022, (2 days after receiving the NOICC), she enrolled in a Diploma in Human Science and Bachelor Degree in Psychology. She paid the fees on 18 August 2022 and received the CoE. She is confident she can complete the study with the aim to register as a Psychologist to serve the larger community of Australia.·She apologises for breaching the visa condition given her mental health and depression from period 2019 to 2022. She requests the chance to complete her studies and become a Psychologist. She is confident that with the current ongoing professional medical support and the opportunity to now do the course she wants, she will be able to successfully complete her education journey in Australia.