Dalby-Jeffreys (Migration) - [2024] AATA 3994

Dalby-Jeffreys (Migration) [2024] AATA 3994 (27 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Olivia Alexandra Dalby-Jeffreys
REPRESENTATIVE:  Mr Nishant Sharma (MARN: 1568498)
CASE NUMBER:  2313767
HOME AFFAIRS REFERENCE(S):          BCC2022/873516
MEMBER:Christine Kannis
DATE:27 September 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 27 September 2024 at 7:29pm
CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa –– applicant was not enrolled in a full-time registered course – breached condition 8202 – deterioration in her mental health – the breach did not occur in circumstances beyond the applicant’s control – there was non-compliance by the applicant in the way described in the notice – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116
Migration Regulations 1994 (Cth), Schedule 8
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 29 August 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 17 September 2024 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative did not attend the hearing.
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 28 January 2021, 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…

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 Dalby-Jeffreys (Migration)

Details

AGLC: Dalby-Jeffreys (Migration) [2024] AATA 3994
Case: [2024] AATA 3994
Decision Date: 27 September 2024

CaseChat Overview and Summary

This matter concerned an appeal by the applicant against the cancellation of her Student (Temporary) (Class TU) visa, subclass 500. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation (NOICC) on the grounds that the applicant had ceased to be enrolled in a registered course from 23 March 2022, thereby breaching condition 8202 of her visa. The applicant did not respond to the NOICC. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal considered evidence presented by the applicant, including documents relating to her previous enrolment and completion of a Certificate III, her mental health history including appointments with a psychiatrist, her grandmother's serious medical condition and treatment in Canada, and a new offer of enrolment for a Bachelor of Education. The applicant's representative submitted that difficulties with online learning due to ADHD, the breakdown of a significant relationship, and her grandmother's illness had severely impacted her mental health and academic performance. The representative argued these personal difficulties constituted compelling circumstances akin to those considered in previous cases such as *Wei* [2003] MRTA 8377, *Chen v Minister for Immigration and Multicultural and Indigenous Affairs* [2005] FCA 229, and *Paduano v MIMIA* (2005) 143 FCR 204, which demonstrated that personal issues could be relevant to visa compliance.

Despite acknowledging the applicant's personal challenges and her passion for early childhood education, the Tribunal found that the breach of condition 8202 did not occur in circumstances beyond the applicant's control. The Tribunal noted the applicant's failure to respond to the NOICC. On balance, and after considering all circumstances, the Tribunal concluded that the ground for cancellation under section 116(1)(b) was established and that the discretion to cancel the visa should be exercised. The Tribunal affirmed the decision to cancel the applicant'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 7 August 2023, the Department the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course from 23 March 2022 and had therefore failed to comply with condition 8202(2)(a) of her visa. The applicant did not respond to the NOICC. Evidence provided to the Tribunal prior to the hearing The following documents were provided:·documents evidencing the applicant’s enrolment in and completion of a Certificate III in Early Childhood Education and Care completed in June 2021;·documents evidencing the applicant’s appointment with a psychiatrist on 11 March 2021;·documents dated in February 2021 evidencing the applicant’s grandmother’s treatment for coronary artery disease at St Michael’s Unity Health Toronto from 11 November 2020 until her discharge on 2 February 2021; and·Crown Institute of Higher Education letter dated 11 September 2024 evidencing offer to the applicant and CoE for Bachelor of Education (Early Childhood) (Birth to Five) created on 16 September 2024. Representative’s written submission which included the following:·The applicant began her studies in 2021 during the challenging aftermath of the COVID-19 pandemic. As lockdowns returned learning transitioned online which created difficulties for her, particularly due to her ADHD. She was open with her teachers about these struggles and although they granted her extensions on assignment deadlines, the shift to online learning continued to be overwhelming. She reached out to student support for but was told as an international student there was no assistance available. ·The end of the applicant’s relationship with her partner affected her emotional and mental stability. This relationship had been a source of support through the challenges of online learning and managing her ADHD. The breakup intensified her feelings of anxiety, loneliness and helplessness, compounding the academic pressures. As she tried to cope with the academic and personal turmoil, her mental health deteriorated further, necessitating her to seek help from a psychologist to manage the stress and emotional pain. ·The applicant’s mental health was significantly impacted by her grandmother’s coronary artery disease. Her grandmother underwent bypass grafting surgery. Given the close bond with her grandmother, this caused the applicant emotional distress. The worry about her grandmother's well-being and surgery heightened her anxiety and affected her ability to focus on her academic responsibilities. The combination of her personal worries and academic pressures took a toll on her mental health. ·The challenges faced by the applicant during bear significant similarities to the cases such as Wei [2003] MRTA 8377, Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 229, and Paduano v MIMIA (2005) 143 FCR 204. These legal precedents demonstrate that personal difficulties such as illness, family issues and mental health challenges can constitute compelling circumstances in the context of visa compliance.·The applicant has always been deeply passionate about early childhood education and completed a Certificate III in Early Childhood Education and Care which shows her commitment to her chosen field and highlights her genuine intention to study and build a career in Australia. Her enrolment in a Bachelor of Early Childhood Education is a testament to her unwavering focus.·The significant challenges the applicant has faced—particularly her grandmother’s health issues and her own ADHD and anxiety—have profoundly impacted her academic performance. Her prioritization of her family’s well-being over personal ambitions demonstrates her strength of character and her unwavering commitment to supporting those she loves. Evidence provided at hearing