CHO (Migration) - [2020] AATA 5031

CHO (Migration) [2020] AATA 5031 (13 October 2020)

DECISION RECORD

DIVISION:		Migration & Refugee Division
APPLICANT:		Ms Seunghee Cho (‘First Applicant’) Mr Jinyu Lee (‘Second Applicant’)
CASE NUMBER:		1834516
HOME AFFAIRS REFERENCE:		BCC2018/4044208
MEMBER:		Dr Jason Harkess
DATE:		13 October 2020
PLACE OF DECISION:		Melbourne
DECISION:		The Tribunal sets aside the decision to cancel the First Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa The Tribunal has no jurisdiction in relation to the Second Applicant

Statement made on 13 October 2020 at 2:25pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) (Subclass 500) visa – not enrolled in registered course – 11 months duration – car accident – relied on education agent – International Convention on the Rights of the Child – best interest of applicant’s son to complete education in Australia – decision under review set aside

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 48, 116(1)(b), 140, 189, 198
Migration Regulations 1994, Schedule 8, Conditions 8202(2)(a), 4013

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

The First Applicant is a citizen of South Korea and is 46 years old. She seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 19 November 2018 cancelling her Student (Temporary) (Class TU) Subclass 500 visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).
The Second Applicant is also a citizen of South Korea. He is 14 years old and is the son of the First Applicant. His Subclass 500 student visa was cancelled following the delegate’s decision cancelling the First Applicant’s visa. He seeks review of the cancellation of his visa. However, no ‘decision’ was made in relation to his visa. His visa was automatically cancelled by the operation of law because he held his visa as a member of the family unit of the First Applicant.[1] Accordingly, there is no reviewable decision before the Tribunal relating to the cancellation of the Second Applicant’s visa
[1] See Migration Act 1994 (Cth), s 140(1), which provides that, ‘[i]f a person’s visa is cancelled under section … 116 …, a visa held by another person because of being a member of the family unit of the person is also cancelled.’

Original Visa Grant

The First Applicant’s visa was granted on 11 October 2016. It was granted because a delegate of the Minister had determined that she met the primary criteria for the grant of a student visa.[2] The First Applicant’s student visa had an original expiry date of 31 July 2019. It provided for more than 33 months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study.
[2] The primary criteria for the grant of student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.
The Second Applicant’s student visa was granted…

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

Case: [2020] AATA 5031
Decision Date: 13 October 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (Cth) considered the cancellation of a Student (Temporary) (Class TU) (Subclass 500) visa held by CHO. The visa was cancelled on the grounds that CHO was not enrolled in a registered course of study, despite the visa being for an 11-month duration. CHO had relied on an education agent in relation to her enrolment.

The Tribunal was required to determine whether the cancellation of CHO's visa was justified, particularly in light of the best interests of her son, who was a child, and the potential impact on his education in Australia. The Tribunal also had to consider the application of the International Convention on the Rights of the Child.

The Tribunal found that while CHO had not been enrolled in a registered course, there were mitigating circumstances, including her reliance on an education agent. Crucially, the Tribunal gave significant weight to the best interests of CHO's son, concluding that it was in his best interests to complete his education in Australia. Applying the principles of the International Convention on the Rights of the Child, the Tribunal determined that the decision to cancel the visa was not in the child's best interests.

Consequently, the Tribunal set aside the decision under review and substituted a new decision to not cancel CHO's visa.

Orders