Dang (Migration) - [2025] ARTA 405

Dang (Migration) [2025] ARTA 405 (19 February 2025)

DECISION AND

REASONS FOR DECISION

Applicant:Miss Nguyen Que Huong Dang
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2318425
Tribunal:General Member D. Barker
Place:Sydney
Date:19 February 2025
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 19 February 2025 at 4:04pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – gap in studies – health issues – academic progression since re-enrolment – financial hardship – decision under review set aside

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 189, 198
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.43

CASES

Liu v MIMIA [2003] FCA 1170

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 to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The delegate cancelled the visa under s 116(1)(b) on the basis that the visa holder had not been enrolled in a registered course for over 18 months and therefore did not comply with the requirements of subclause (2)(a) of condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 23 January 2025 to give evidence and present arguments. The Tribunal was assisted by an interpreter of the Vietnamese and English languages.
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

Under s 116(1)(b) of the Act, the Minister may cancel a visa if he or she is satisfied that a visa holder has not complied with a condition of the visa. However, the Regulations may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
There are currently no prescribed circumstances under s 116(2) requiring the visa not be cancelled, or under s 116(3) requiring the visa to be cancelled, that apply.
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 Regulations. If satisfied the applicant has breached condition 8202, the decision maker must proceed to consider whether the visa should be cancelled under s 116(1)(b). In determining whether the visa should be cancelled, the decision maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and reg 2.43A, and other matters of government policy.
Information from the documentation available to the Tribunal and the applicant’s evidence at hearing is discussed, where appropriate, in the following sections of these reasons for decision.

Did the applicant comply with Condition 8202?

On 30 March 2022, 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 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA [2003] FCA 1170.
Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas Students Act 2000 (the ESOS Act). In particular, a ‘Confirmation of Enrolment’ (CoE) means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.
The Department’s decision of 3 November 2023, a copy of which was provided in association with the review application, states that a review of the PRISMS record shows that the applicant had not been enrolled in a registered course of study since 8 April 2022.
In response to the applicant’s PRISMS record showing their lack of enrolment in a registered course, the Department, on 18 October 2023 sent the applicant a Notice of Intention to Consider Cancellation (NOICC). By way of response the applicant provided evidence to the Department which included, but was not limited to, the following:
·Written submission dated 1 November 2023.
·Departmental visa grant notice for the applicant’s Student visa granted on 5 June 2019.
·Departmental visa grant notice for the applicants Student visa granted on 30 March 2022.
·CoE for Advanced Diploma of Business [BSB60120], through the Victory Institute, commencing 8 January 2024, concluding 4 January 2026.
·Letter of Offer and Written Agreement dated 30 October 2023, between Victory Institute and the applicant for the Advanced Diploma of Business.
·Documentation of applicant’s academic progression issued by Charles Campbell College for the 2019–2021 period.
·Documentation regarding employment conditions for health workers in Vietnam.
·Marriage certificate of applicant’s parents.
·Documentation regarding income and financial assets of applicant’s parents.
·Documentation regarding savings held by the applicant in a Vietnamese financial institution.
·Medical evidence pertaining to the applicant.
In her written submissions of 1 November 2023, the applicant did not contest the contention that she had not been enrolled in a registered course of study over the period since 8 April 2022.
At hearing and in documentation provided in association with the review application the applicant has provided evidence of her enrolment and ongoing study in an Advanced Diploma of Business, which commenced on 8 January 2024 and which is due to finish on 4 January 2026. The CoE for the Advanced Diploma of Business shows that the applicant enrolled in this course on 29 December 2023.
On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course between 8 April 2022 and 29 December 2023. Accordingly, the applicant has not complied with condition 8202(2)(a) attached to her Subclass 500 Student visa.

Consideration of discretion

Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the power to cancel the visa should be exercised. For temporary visas other than criminal justice and enforcement visas, there are prescribed matters to which the decision maker must have regard in determining whether they are satisfied as mentioned in s 116(1)(b): s 116(1A) and reg 2.43A of the Regulations. The prescribed matters are set out in the attachment to this decision.
The Tribunal has also had regard to the circumstances of this case, including matters raised by the applicant and matters in the Department’s procedures advice manual ‘General visa cancellation powers’, as set out below.
Documents filed in support of the review application include:
·Duplicate copies of documents filed with the Department.
·Documentation regarding the applicant’s academic studies in Australia.
·Documentation regarding payment of course fees for Advanced Diploma of Business.
·Applicant’s statutory declarations declared 28 November 2023 & 11 December 2023.
·Medical evidence & photographs pertaining to the applicant’s health conditions.
·Written submissions received 23 January 2025.
The Tribunal’s considerations
The Tribunal has considered reg 2.43A. In the present case there are no claims or evidence in relation to certification of workplace exploitation and therefore the only relevant consideration for the Tribunal under reg 2.43A is reg 2.43A(2)(d) which provides that the Minister must have regard to whether there is any evidence before the Minister that the visa holder either was not complying with the purpose of the visa, or is no longer seeking to comply with the purpose of the visa. The Tribunal’s review of the available information shows that this matter does not appear to be directly linked to a workplace exploitation matter.
The Tribunal has had regard to whether the applicant was not complying with the purpose of her Student visa and finds that the applicant was not complying with the purpose of the Student visa over the period from 8 April 2022 and 29 December 2023 and considers that this weighs in favour of visa cancellation.
Beyond the matters prescribed under reg 2.43A, the Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s policy guidelines ‘General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)’, which refers to matters such as the consequences of cancelling the visa, international obligations, and any other relevant matters.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia.
The applicant came to Australia as the holder of a Student visa in July 2019 with a plan to complete her secondary school education and progress through a package of courses leading to a tertiary qualification. After completing study in Year 10 and Year 11 level subjects at the Charles Campbell College in Adelaide, South Australia, over the period between July 2019 and June 2021, the applicant then relocated to Sydney, NSW where she completed a Foundation Program through the Sydney Institute of Business and Technology (SIBT), which is located within the Sydney campus of Western Sydney University (WSU). At this stage the applicant had confirmation of her enrolment in a package of courses which would progress through study in a Diploma of Business at SIBT and then a Bachelor of Business program at WSU.
The applicant, after a period in which she was affected by health problems, recommenced study in January 2024 in an Advanced Diploma of Business. She has now completed the first year of this two-year course and has provided evidence of her ongoing study in the course.
On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study and achieve qualifications in business for the purpose of improving her career prospects in her home country, Vietnam.
The applicant provided evidence about her background in Vietnam, where her father is a medical doctor. The applicant has not held paid employment whilst she has been in Australia since 2019, instead relying on financial support provided to her by her parents. The applicant has resumed study and displays academic progression in the course in which she is currently enrolled. There is consistency in the business related vocational/study pathway in which the applicant has studied whilst in Australia.
The Tribunal accepts the applicant will benefit from further study in her chosen study pathway and has given this factor weight as a compelling need to remain in Australia. The Tribunal considers that this weighs against the cancellation of the visa.
The extent of compliance with visa conditions
There is no evidence before the Tribunal that the applicant has not complied with any other visa conditions and the Tribunal has given some weight in her favour on this consideration.
The degree of hardship that may be caused (financial, psychological, emotional, or other hardship)
The applicant gave evidence at hearing that her mother and father have supported her financially and emotionally throughout the period she has been in Australia. She contended that from the time, with the assistance of her parents, she applied for the visa which enabled her to come to Australia and complete her secondary school studies the plan was for her to study further and hopefully achieve tertiary qualifications. The applicant gave evidence that both she and her parents have put a lot of effort into her achieving this goal. It is really important for her to finish her studies in Australia with completed courses so that she can return to Vietnam and use the qualifications to assist her with future work in her home country.
The applicant gave evidence that her sole reason for coming to Australia was to study and for her not to return to Vietnam with adequate qualifications would be very unfortunate for her and her parents. She contends that her parents have provided her with a lot of financial assistance since 2019 and to return to Vietnam without achieving her academic goals would see this all go to waste.
The Tribunal accepts that the cancellation of a visa is disappointing and that a significant amount of money may be invested in a person in order to set them up in a country to live independently in order to study. The Tribunal acknowledges that disappointment is felt by family members who may also feel let down by their dependent child, which in turn can cause future disharmony and conflict within their family.
Based on the evidence provided, the Tribunal accepts the applicant and her parents will suffer a degree of hardship if her visa is cancelled. The Tribunal considers that this weighs against the cancellation of the visa.
Circumstances in which the ground of cancellation arose; whether there were any extenuating circumstances beyond the visa holder’s control that led to the ground existing
In response to a question at hearing as to why she had not maintained study in a registered course over the period from April 2022 to January 2024, the applicant said that during that time she had given priority to trying to manage her health problems. She said that at the beginning of 2022 she was sick a lot of the time and that she just stayed at home. The applicant explained that she suffered from Covid-19 and following this started getting frequent nose bleeds. She said she was also sick mentally, feeling scared, anxious and depressed. She was not healthy enough to think clearly and trying to look after her health was the most important thing. It was unclear what was causing her to be so sick and even the doctors in the hospital emergency could not work out why.
The applicant gave evidence that her father is medical doctor working in a hospital in Vietnam and in the circumstance where she has no relatives or other close supports here in Australia she has sought advice from him regarding the ongoing management of her health problems and only sought assistance from hospitals and medical services in Australia when the need was urgent. The applicant explained that she became very fatigued, depressed and anxious during the time she was acutely unwell and that she felt quite overwhelmed for much of this period.
The applicant contends that she was making consistent academic progress until health problems outside of her control impaired her ability to continue with her studies.
The Tribunal has reviewed the medical evidence provided in support of the review and notes that it shows that:
·In January 2022 the applicant had a positive Covid-19 test response.
·In March 2022 the applicant was diagnosed with anterior epistaxis (nose bleed).
·In June 2022 the applicant was diagnosed with anxiety and depression.
·In June 2023 the applicant was diagnosed with hematemesis (vomiting blood).
The Tribunal is satisfied that health problems affecting the applicant impacted her lack of enrolment in a registered course during the period from April 2022 to January 2024. Further to this, the Tribunal is satisfied that these health problems were outside of the applicant’s control. The Tribunal is mindful that it is the responsibility of a visa holder to take appropriate action to comply with conditions of their visa, or to liaise with immigration authorities if they are at risk of breaching visa conditions. However, in the circumstance where the applicant was suffering from diagnosed physical and mental health conditions, the Tribunal is satisfied that these provide a plausible reason as to why the applicant focussed on improving her health over other things. For this reason, the Tribunal accepts the applicant’s contention that she was not focussed upon her visa conditions until the potential breach of the enrolment condition was brought to her attention when she received the NOICC.
Taking the circumstances in which the ground of cancellation arose, the Tribunal is satisfied that there were extenuating circumstances beyond the visa holder’s control that led to the ground existing. The Tribunal considers that these extenuating circumstances weigh against the cancellation of the visa.
Past and present behaviour of the visa holder towards the Department
There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor neutral weight in its considerations.
Whether there would be consequential cancellations under s 140
This factor is not relevant to the applicant.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The Tribunal is aware that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 of the Act and removed from Australia pursuant to s 198 of the Act. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion (PIC 4013). The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.
The applicant is a citizen of Vietnam and has made no claim for a protection visa. At hearing she indicated that she has no concern for the safety of herself or her immediate family in the circumstance where she would be required to return to Vietnam. The applicant indicated that she has no concern in relation to political or civil unrest in her home country.
There is no evidence and no suggestion that removal of the applicant would lead to a breach of Australia’s non-refoulement obligations. The Tribunal regards this factor to be neutral in its considerations.
The Tribunal has considered Article 3 of the Convention on the Rights of the Child (Convention) (CRC) which requires that in all actions involving children, the best interests of the child shall be the primary consideration. The Tribunal has also considered the family unity principles under the International Covenant on Civil and Political Rights (ICCPR). In the circumstances of this case there are no children whose interests would be impacted if the applicant’s visa is cancelled. The Tribunal regards this factor to be neutral in its considerations.
Any other relevant matters
The applicant gave evidence at hearing that she has been in Australia since 2019. From 2019 to 2022 she attended all classes and completed courses she was undertaking. She studied consistently until her health problems, which were outside of her control, constrained her ability to do so. She has resumed study now that her health has improved. She is now attending all classes and completing all assessment tasks set for her. The applicant emphasised that she would ask for the opportunity to achieve the study goals originally planned for her by her and her parents.
Conclusion
After considering the aforementioned factors separately and cumulatively, the Tribunal considers that the applicant ought to be given the chance to complete the study that she is currently undertaking in the Advanced Diploma of Business. In forming this view, the Tribunal has placed considerable weight on the circumstances which gave ground to the applicant’s lack of enrolment and of the constant academic progress she made prior to the onset of her health problems and since she resumed studies in January 2024.
Considering the circumstances as a whole, the Tribunal concludes 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.

Date(s) of hearing: 23 January 2025