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…

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 Dang (Migration)

Details

AGLC: Dang (Migration) [2025] ARTA 405
Case: [2025] ARTA 405
Decision Date: 19 February 2025

CaseChat Overview and Summary

The applicant, Dang, appealed a decision to cancel their Student (Temporary) (Class TU) visa, Subclass 500, on the basis of alleged non-compliance with the conditions of their visa. The case was heard and determined by the Administrative Appeals Tribunal. The primary issue before the Tribunal was whether the applicant had not complied with the purpose of their visa due to a gap in studies and whether, in the circumstances, the visa should be cancelled.

The Tribunal examined the applicant’s compliance with the visa conditions, particularly the requirement to be enrolled in a registered course of study. It was noted that the applicant had been enrolled and had been attending classes and completing courses until health issues prevented this from April 2022 to December 2023. The Tribunal gave significant weight to the applicant’s academic progress before and after the health issues, as well as the financial hardship caused by the visa cancellation. The Tribunal also considered the applicant’s intention to complete their studies and the likelihood of continued academic success. In light of these factors, the Tribunal concluded that the applicant should be given an opportunity to complete their current studies.

In setting aside the decision to cancel the visa, the Tribunal emphasised the applicant’s proactive steps to resume studies, their consistent academic progress, and the uncontrollable nature of their health issues. The Tribunal found that the evidence did not support a finding that the applicant was not complying with the purpose of their visa, and thus the decision to cancel the visa should be set aside. The Tribunal substituted a decision not to cancel the visa, allowing the applicant to continue their studies in the Advanced Diploma of Business.

The Tribunal’s decision underscores the importance of considering individual circumstances, including personal hardship and uncontrollable events, when assessing compliance with visa conditions. The Tribunal’s ruling ensures that the applicant can continue their education in Australia without the immediate threat of visa cancellation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Ratio Decidendi

Legal Principle Established

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.