Chen (Migration) - [2024] ARTA 133

Chen (Migration) [2024] ARTA 133 (21 November 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Liujiao Chen
Respondent:  Minister for Home Affairs
Tribunal Number:  2425203

Tribunal:Senior Member G. Cullen
Place:Sydney
Date: 21 November 2024
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 21 November 2024 at 2:02pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – Confirmation of Enrolment and Academic Statement provided upon review – decision under review set aside
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 July 2024 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
On 19 July 2024 the delegate cancelled the applicant’s visa under s.116(1)(b) on the basis that she did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.
The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 26 July 2024.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant was represented in relation to the review.
The applicant via her representative provided numerous submissions to the Tribunal indicating she was enrolled in the relevant period.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
The applicant was granted a subclass 500 Student visa on 20 August 2022 valid, at that time, to 15 March 2025. That visa was subject to condition 8202.
Did the applicant comply with condition 8202?
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 registered course, or in limited cases, a full time course of study or training: 8202(2);
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a); and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course: condition 8202(2).
The applicant was notified of the intention to consider cancellation (NOICC) of her visa on 7 June 2024 on the basis that she had not been enrolled in a course of study from 1 June 2023 to 14 January 2024. The applicant did not respond to the Notification of Intention to Consider Cancelling the Visa (NOICC).
The Tribunal is satisfied that the NOICC was validly issued.
The delegate on 19 July 2024 found the applicant had not been enrolled in a registered course of study from 1 June 2023 to 14 January 2024. The decision was made on the basis of evidence from the Provider Registration and International Student Management System (PRISMS), which provides evidence of enrolment. The delegate cancelled the applicant’s visa under s.116(1)(b) on the basis that she did not comply with condition 8202 which requires the applicant to be enrolled in a registered course.
In submissions to the Tribunal, the applicant disputed that she was not enrolled in a course of study from 1 June 2023 to 14 January 2024 and disputed that she had not complied with condition 8202(2) of her visa.
Her representative has provided the following evidence showing the applicant was enrolled in the relevant period.
·Email from the Manager of International Student Compliance at the University of New South Wales to the Student Visa Assurance Team dated on 23 July 2024 confirming that the applicant has been a full-time student at UNSW since Term 1, 2022. In particular, the email notes she was enrolled in full-time study from 1 June 2023 to 14 January 2024.
·Applicant’s Academic Statement which shows all subjects the applicant enrolled in and marks she has achieved since Term 1, 2022.
·Applicant’s Fee Statements dated 7 June 2023 for Term 2, 2023 and 20 September 2023 for Term 3, 2023 which shows the applicant was enrolled full-time and paid all the international tuition fees in the relevant period.
·Confirmation of Enrolment (COE) showing the applicant was enrolled from 29 May 2023 to 31 May 2025. The applicant’s representative notes that this COE was cancelled by the Department when the visa was cancelled on 19 July 2024.
While PRISMS is usually accurate, the Tribunal accepts based on the evidence before it, that in this instance it is not, and the applicant was enrolled in a course of study from 1 June 2023 to 14 January 2024.
Therefore, on the evidence, the Tribunal finds that the applicant was enrolled in and did have a Confirmation of Enrolment (CoE) in a registered course or a full-time course of study or training from 1 June 2023 to 14 Janaury 2024 while the holder of a subclass 500 Student visa. It finds the applicant has complied with condition 8202(2).
The Tribunal finds that the decision to cancel the applicant’s visa should be set aside.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Representative for the Applicant: Ms Yan Wu
ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(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.