Ghale (Migration) - [2024] AATA 2200

Ghale (Migration) [2024] AATA 2200 (5 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Roshni Ghale
REPRESENTATIVE:  Ms Indah Melindasri (MARN: 0961448)
CASE NUMBER:  2302766
HOME AFFAIRS REFERENCE(S):          BCC2022/4245122
MEMBER:Christine Kannis
DATE:5 April 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 05 April 2024 at 7:49am
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant had not been enrolled in a registered course of study– breached condition 8202 – applicant’s enrolment had been cancelled due to non-payment of fees by the due date – applicant was not enrolled in a course of study for a period of 14 months prior to the issuing of the NOICC – the breach did not occur in circumstances beyond the applicant’s control – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 101, 359
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 17 February 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 on 18 March 2024 to give evidence and present arguments.
The applicant was represented in relation to the review.
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 9 November 2019, 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…

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 Ghale (Migration)

Details

AGLC: Ghale (Migration) [2024] AATA 2200
Case: [2024] AATA 2200
Decision Date: 5 April 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Ms. Ghale, who sought review of the cancellation of her Subclass 500 student visa. The Department of Home Affairs had cancelled Ms. Ghale's visa on the grounds that she had breached a condition of her visa by not being enrolled in a registered course of study for a period of approximately 14 months prior to the Notice of Intention to Consider Cancellation (NOICC). Ms. Ghale contended that her enrolment had been cancelled due to non-payment of fees, and that this situation arose from a miscommunication with her education provider and personal circumstances, including family bereavement and mental health challenges during the COVID-19 pandemic.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether the Tribunal should exercise its discretion to cancel the visa. The Tribunal was required to determine if Ms. Ghale had failed to comply with condition 8202 of her visa, which mandates enrolment in a registered course, and whether any circumstances beyond her control excused this failure. The Tribunal also had to consider the applicant's personal circumstances and submissions in deciding whether to affirm the cancellation.

The Tribunal found that Ms. Ghale had indeed failed to maintain enrolment in a registered course, thus breaching condition 8202(2)(a). While acknowledging the applicant's personal difficulties, including family bereavement and isolation during the pandemic, and a claimed miscommunication with her education provider regarding fee payments and deferral requests, the Tribunal concluded that these circumstances did not constitute a situation beyond her control that would excuse the breach. The Tribunal noted that Ms. Ghale had not responded to the NOICC and that the evidence presented regarding the alleged miscommunication lacked definitive proof. Despite recognising the significance of visa cancellation, the Tribunal, on balance, determined that the ground for cancellation was established and that the discretion to cancel the visa should be exercised.

Consequently, the Tribunal affirmed the decision to cancel Ms. Ghale's Subclass TU 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 her representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. On 23 January 2023, the Department’s Character and Cancellation Branch sent the applicant an email regarding verification of her contact details and she responded on 24 January 2023. On 1 February 2023, 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 from 23 November 2021 and had therefore failed to comply with condition 8202(2)(a) of her visa. The applicant did not respond to the NOICC.Evidence provided prior to the hearing On the morning of the hearing the applicant’s representative provided documentation which included but was not limited to statutory declarations, financial evidence and a written submission. An undated statutory declaration made by the applicant in which the following relevant information was provided:·She came to Australia to study a Bachelor of Science. She has been interested in health and medical science since she was a child.·The education system in Nepal is behind Australia in terms of providing practical training.·When she decided to study overseas her parents promised to sponsor her until she finished.·She enjoyed her study until an emergency occurred in her family. During her first semester in 2021, her grandmother passed away in Nepal. She asked Curtin Connect for withdrawal or a deferral for the semester and also for the next semester in order to attend her grandmother's funeral rituals. At the same time, she was not in a great place mentally since she came to Australia when COVID-19 hit the world and as an underage student, she was alone in her Curtin accommodation without friends for almost a year in 2020 which made her feel isolated and homesick. Due to this condition, she was scared and wanted to take this opportunity to reunite with her family in Nepal and come back to study once everything was fine.·She went to Curtin Connect to talk with Curtin International around the end of May 2021 and beginning of June 2021 regarding her plan to withdraw for the semester and deferral for next semester. She talked with a lady who said her withdrawal process for that semester and deferral process had been approved. The lady did not give proof or even any information and said everything should have been in her OASIS (Online Access to Student Information Services) Curtin so she (the lady) could get all the information from that if she needs. She also asked the lady whether she had to pay the tuition fees and the lady said she did not need to do anything as it had already been withdrawn but she would not be getting the amount back she had already paid for some of units for the semester. “My bad, I don’t have any evidence of this”. She left Curtin Connect office and did not check her OASIS portal.·As an international student during the pandemic she faced a heartbreaking situation when she couldn’t travel to her grandmother's funeral. As an eldest and closest grandchild who was brought up by her grandparents, the thought of not being able to say goodbye weighed heavily in her heart. However because of the uncertainty of when she would be able to return home and the limited time to hold the funeral rituals, she made the difficult decision to stay and attended the rituals virtually·A month passed and she received notification of CoE cancellation on 6 October 2021 through her personal email instead of OASIS. The cancellation reason was due to non-payment of fees. She went to Curtin Connect on 13 October 2021 to clarify the reason for the cancellation due to non-payment of fees was different from what the lady talked with her about around the end of May 2021. She was given a reinstatement deadline of 19 October 2021 for Semester 2 however she could not make it and comply with the immigration requests to provide a new CoE within 28 days since the emails regarding her CoE cancellation were sent to her OASIS account and she could not access the account as her CoE has been cancelled. She did not have any clue about the reinstatement deadline.·She went back to university and through a couple of agents during that time and asked if she could apply for courses again. She did not get much help but tried applying as well and sent through some personal statements she prepared for courses. She asked one agent to help her apply for a new course but they told her to apply for pathway course and study in a college for 2 years and transfer to university for the 3rd year of Bachelor but they asked her to go for Business study while she still wanted to continue study in Health Care. Going around all these places and going through the process for a year did not really help her in any way.·When she received the NOICC she was shocked and did not respond to the grounds of cancellation. She had no idea what she could do when her student visa was cancelled. She sought advice from a migration agent.·During her time studying at Curtin she paid the fees on time. However, due to a miscommunication with Curtin, her immigration matters have been more complex.·It has been devastating for her parents to know her student visa was cancelled. Her parents work very hard to provide her with a comfortable environment where she does not have to worry about anything except her studies. She is also a role model for her younger sister to study hard overseas. ·Once she completes her study she would like to return to Nepal and dedicate her skills and abilities in the field of community health service.·She is confident her father is able to afford her living costs during her further studies and stay in Australia