Dang (Migration) - [2022] AATA 3789

Dang (Migration) [2022] AATA 3789 (21 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Vo Hong Dao Dang
CASE NUMBER:  2119174
HOME AFFAIRS REFERENCE(S):          BCC2020/2463082
MEMBER:Christine Kannis
DATE:21 September 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 21 September 2022 at 7:49am
CATCHWORDS
MIGRATION – cancellation – Student Temporary (Class TU) visa – Subclass 500 (Student) not enrolled in full-time registered course – discretion to cancel visa – study difficulty and temporary loss of part-time job because of COVID – physical and mental health and treatment – multiple cancellations of enrolment for non-payment or non-commencement – new enrolments made before and after receiving department’s notice – no appearance at hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 362B
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
CASE
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 14 December 2021 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.
On 18 August 2022, the Tribunal sent the applicant an Invitation to Attend a Hearing letter (by email) which advised that a hearing had been listed for 20 September 2022 at 1.30 pm (SA time) . The Invitation informed the applicant that if she was unable to attend the hearing then she should advise the Tribunal as soon as possible. The Invitation advised that if she did not attend the hearing a decision may be made on the review without taking any further action to allow or enable her to appear before the Tribunal or that her application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal. The Invitation also requested the applicant provide all documents on which she intended to rely to support her case by 13 September 2022.
On 25 August 2022, the applicant provided a Response to the hearing invitation in which she indicated that she would not participate in the hearing and consented to the Tribunal making a decision without taking further steps to allow her to appear. She also indicated that she had a health problem that would affect her ability to participate in a hearing and that she would have difficulty participating in a hearing due to “experiencing medical difficulty”. Therefore, on 26 August 2022 the Tribunal sent the applicant the following request:

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) [2022] AATA 3789
Case: [2022] AATA 3789
Decision Date: 21 September 2022

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Ms. Dang, against the cancellation of her Student Temporary (Class TU) visa. The applicant had been granted the visa to undertake studies in Australia. The Department of Home Affairs had cancelled her visa on the grounds that she had failed to comply with condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a full-time registered course. The Administrative Appeals Tribunal was required to determine whether the applicant had breached condition 8202 and, if so, whether to exercise its discretion to affirm the cancellation of her visa.

The Tribunal first considered whether the applicant had breached condition 8202. This condition requires a student visa holder to be enrolled in a full-time registered course and to maintain that enrolment, as well as to achieve satisfactory course progress and attendance. The evidence before the Tribunal indicated that the applicant had not been enrolled in a full-time registered course from 22 March 2021, thereby breaching condition 8202(2)(a). The Tribunal then turned to consider the exercise of its discretion regarding the cancellation of the visa, having found that the ground for cancellation existed.

In considering the discretion, the Tribunal had regard to the applicant's explanation for her study difficulties. She cited overwhelming academic pressure, the impact of COVID-19 on her part-time employment, and significant physical and mental health issues, including depression and a diagnosis of hepatitis B. She detailed her efforts to seek medical and psychological treatment and her intention to re-enrol in studies. Despite acknowledging the seriousness of visa cancellation and the applicant's stated efforts to address her circumstances, the Tribunal ultimately concluded that, on balance, the visa should be cancelled. 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

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? 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. In the present case, the applicant’s visa was cancelled on the basis that she was not enrolled in a full time registered course from 14 August 2020. 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 StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ 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.[2] [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).[2]Migration Regulations, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act. The delegate decided that PRISMS showed that the applicant has not been enrolled in a registered course of study since 14 August 2020. The Tribunal noted that PRISMS indicates that the applicant was enrolled in courses until 22 March 2021. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course from 22 March 2021 and the Tribunal finds that she breached condition8202(2)(a) of her visa.

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 Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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 23 November 2021 the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of her visa. Response to NOICC On 6 December 2021, the applicant responded to the NOICC and provided the following information in a Letter of Explanation:·She studied diligently until August 2020 when her course was in the final stage and required more in-depth research. She was overwhelmed by the number of assignments, presentations, reports. Also, there had been the appearance of the coronavirus which frightened the world. ·She temporarily lost her part-time job due to the epidemic which made her worried because she needed a job to make a living in order to support her studies in Australia. ·She felt under a lot of pressure and stress and became isolated from everyone. She knew she had a psychological problem and could not focus her mind to study well. ·She tried to continue to study by applying for courses, but her mental health had become worse. After holding on for a while, she could not take it anymore and at the beginning of this year she had decided to take her life. That was the main reason why her last CoE was cancelled on 22 March 2021.·After not being able to reach her for some time, a friend convinced her to meet with professionals. Because mental health is considered taboo in her country, she did not think about this option at first. During this gap period, she went through many consultations with therapists and doctors to receive advices and treatment for depression. She met clinical psychologist, Ms Crystal Bozar, however, she found counselling was not suitable for her as she felt uncomfortable talking about her problems to others. As a result, her health did not improve at the time. Then she went to see a Vietnamese doctor, Dr Ngoc Tho Nguyen. She felt easier to share her condition and decided to follow the treatment with Dr Nguyen who prescribed Aerius 5mg, Prednisolone 25mg, etc. to boost sleep quality, stabilise mood swings, regulate menstrual cycle as well as increase resistance to treat anxiety disorders and mental insecurity.·During her treatment with Dr Nguyen, she realised she had a painful rash and felt sluggish, fatigue and exhausted all of the time. In May 2021 she underwent a blood test, allergy test and other health checks and was diagnosed with hepatitis B. ·On 2 December 2021 she went to another psychological consultation and is trying to get back on her feet. Her mental state has improved so much. Therefore, she decided to return to her studies as soon as possible and registered in a package course in Business Administration and Leadership beginning from Certificate III to Advanced Diploma at Australian Ideal College (AIC). On 10 November 2021 she received Letter of Offer from the college. ·On 23 November 2021, the Department sent her the NOICC and she was requested to give explanation for her study gap. She planned return to study before getting the letter. ·Her health condition has now improved. She thinks people like her deserve a second chance to prove themselves, because of all the effort she has made.