GC (Migration) - [2024] AATA 3339

GC (Migration) [2024] AATA 3339 (2 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Manila GC
CASE NUMBER:  2310771
HOME AFFAIRS REFERENCE(S):          BCC2022/4150309
MEMBER:Christine Kannis
DATE:2 September 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 02 September 2024 at 2:02pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – mental health issues – family bereavement – multiple course cancellations – limited academic progress – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 189, 198, 359, 362
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03
CASES
Liu v MIMIA [2003] FCA 1170
Plaintiff M64/2015 v MIBP [2015] HCA 50
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 11 July 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.
The Department’s records show that on 5 January 2023 the Character and Cancellation Branch contacted the applicant and requested she confirm her contact details. She did not respond to this request. On 5 January 2023, the Department also contacted the applicant’s education provider and requested her contact details. On 5 January 2023, the education provider responded and confirmed the applicant’s email address.
On 20 February 2023, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC). The NOICC was sent to the applicant by email and by post. The applicant responded by email and requested an extension of time within which to respond to the NOICC, which was granted. On 3 March 2023, the applicant responded to the NOICC by email.
On 17 July 2024, the Tribunal sent the applicant an Invitation to attend a hearing on 2 September 2024 at 11.00 am (NSW time). The Invitation advised the applicant that if she was not able to attend the hearing he should advise the Tribunal as soon as possible. The invitation further advised:
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
On 19 August 2024, the Tribunal sent the applicant an email advising as follows:
I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.
On 17…

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

AGLC: GC (Migration) [2024] AATA 3339
Case: [2024] AATA 3339
Decision Date: 2 September 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 500. The applicant had ceased enrolment in a registered course, which constituted a ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth). The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal considered the applicant's explanation for ceasing enrolment, which included severe mental health issues stemming from childhood trauma, family bereavements, and relationship breakdowns. The applicant detailed a history of domestic violence, the sudden death of her father on her birthday, and the subsequent death of her partner, Sushant, due to an accidental drug overdose. These events led to profound depression, anxiety, suicidal ideation, and an inability to engage with her studies or daily life for extended periods, resulting in the cancellation of her Confirmation of Enrolment (CoE). Despite these significant personal challenges, the applicant expressed a strong desire to continue her studies and pursue her dream of becoming a chef, having obtained a new CoE for a Certificate IV in Kitchen Management and a Diploma in Hospitality Management.

The Tribunal acknowledged the gravity of visa cancellation but, after weighing all the circumstances, concluded that the visa should be cancelled. While recognising the applicant's difficult personal circumstances and her stated commitment to future studies, the Tribunal ultimately 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 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. As noted, on 5 January 2023 the Department sent the applicant an email regarding verification of her contact details and on 20 February 2023 the Department issued her with a NOICC because she had ceased to be enrolled in a registered course from 3 December 2021 and had therefore failed to comply with condition 8202(2)(a) of her visa. On 3 March 2023, the applicant responded to the NOICC and provided the following information: She came to Australia to pursue an Advanced Diploma in Accounting and completed the course. She applied for further studies and was going well and a tragedy happened which affected her mental health severely and she couldn't submit assignments which led to cancellation of her CoE. She has been depressed since childhood. Her parents used to fight all the time. When she was four months old her father while trying to hit her mother accidently hit her with a knife and she has a scar on her face. She grew up seeing her parents verbally and physically abusing each other. She was helpless, too young and scared to say anything or stop the fights. Her mother's drinking problem and father's anger issues got worse. They didn't care about her or her brother. After every fight her father would leave the house for days and her mother would drink and take out her frustration by throwing things at her or hitting her and wouldn't remember abusing her the next morning. Her mother kept saying sorry but never stopped. Her dad supported her but never did anything to stop her mother or the fights between them. She felt alone and depressed and it affected her studies. She became emotionally and mentally weak and started to fear meeting people and locked herself in the house. Her parents did not care about her wellbeing. Eventually, her relationship with her father improved but when she started to feel a little better he suddenly passed away on her 12th birthday. For a long time she did not accept his death and blamed herself for his death. She felt completely alone. Her mother’s drinking never stopped. She built a wall from her mother and brother and stayed in silence. She was too young to understand about depression and professional help. It took 3 years to live a normal life. She completed middle school and joined high school. She met a guy, Sushant, in year 12. He was a talkative, good looking and social person. She was introverted and had only three friends and found it harder to communicate and make friends. Sushant wanted her to help him with his studies for exams. She wanted to help him but he was always surrounded by his friends which made her feel anxious. She helped him with his studies and they started to like each other. He added meaning to her life and helped with her depression. She ignored him during final exams and after exams she couldn't see him. She feared going outside the house and had no phone or social media to contact him. Time passed and she graduated from high school and was confused about what and where she should study after high school. Her mother wanted her to get married. She was 16 and very young to oppose her mother but she wasn't ready to marry Her mother and relatives chose a man for her. He was settled in the United States and was 9-10 years older. She told her mother she wanted to study but her mother wanted her to marry this man. She understood her mother wanted a secure future for her but she knew she would not be happy. She contacted her uncle in Australia and told him her situation. He suggested she study in Australia and helped through the application process. She received her Student visa and was happy to be away from the toxic thoughts of her family but at the same time she was freaked out thinking whether would be able to survive with her anxiety and introverted behaviour. She came to Australia and was focusing on her studies and achieving high distinctions in her advanced diploma course. After a while Sushant contacted her and they started talking and soon they were in a relationship. He introduced her to his family. His mother didn't like her. Two years passed and she completed her advanced diploma. She applied for a bachelor 's in accounting but after first semester realised she had no interest in accounting. She wanted to change and study nursing. She was late and couldn't get a seat till next year. She was pursuing a Bachelor in Community Services. Sushant wanted to get married. She loved him but was not ready for marriage. Sushant and his family started to force her to go to Nepal and marry. She wasn't able to go due to corona. Soon after the relationship started to fall apart but still they were together. His family began to force him to end the relationship and marry someone else who could bring him to Australia. She was only 20 years old. She knew she wasn't ready but agreed to the marriage. She planned to go to Nepal around mid-January however on 11 November she received news that Sushant had passed away, She was very shocked. They had a conversation the night before and everything was fine. His friends told her the reason was accidental drug overdose. She had no idea about him taking drugs. The next day his sister called and blamed her for his death because she was the last person to speak to him over the phone. His family started to harass her and her family, abused her over social media and made her life hell. They accused her and kept harassing her for months. She was very depressed and suffered anxiety attacks, had suicidal thoughts and locked herself in a room for months. She slept 15-16 hours a day due to increased depressive symptoms. She stopped going to work or to study. She didn't know what she was doing with her life and felt no motivation for staying alive. She turned off her phone for months. She locked herself in a hotel room for months where no one would come looking and was not in contact with anyone. She didn't realise 9 months passed and her CoE was cancelled. She didn't know where to go for help. She had no money as she had sent almost all the savings to Sushant for the marriage arrangements. His parents refused to give this money back and kept harassing her when she tried to contact them. She was too afraid to ask her mother and was scared and didn't know what to do. Sushant's death was a tragedy and her savings were gone and CoE cancellation frightened her. As she was recovering from depression she met a friend and shared everything about her past except the CoE cancellation. When she received the NOICC she shared this and her friend advised her to enrol in a course. She is keen to complete her study as she always had interest in cooking and has now found a right course maintaining her visa AQF level. She has received a CoE for a Certificate IV in Kitchen Management and Diploma in Hospitality Management which will enhance her knowledge and move towards her dream of becoming a chef. She has one goal, to be chef and open a restaurant in her home country. She needs support from the Department as she is a young girl with a purpose and wants to learn more to stand independently. She feels lucky she is in a country where mental freedom and equality is given to all. She regrets her mistakes doesn’t want to spoil her future due to these mistakes. She has achieved good grades during her academic years and wants to continue her studies. She has now completely healed and came to her senses and want to move ahead with her studies and life. She will not repeat the mistakes that happened in the past.