Kuah (Migration) - [2023] AATA 1213

Kuah (Migration) [2023] AATA 1213 (2 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Wai Yan Kuah
REPRESENTATIVE:  Mr Grant Huang (MARN: 0955280)
CASE NUMBER:  2208167
HOME AFFAIRS REFERENCE(S):          BCC2021/942097
MEMBER:Christine Kannis
DATE:2 May 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 02 May 2023 at 7:58am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a full-time registered course – gap in studies – COVID19 pandemic college closure – payment of tuition fees – multiple course cancellations – financial hardship – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 189, 198, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03
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 1 June 2022 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 (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 by MS Teams video on 18 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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 3 August 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 by…

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 Kuah (Migration)

Details

AGLC: Kuah (Migration) [2023] AATA 1213
Case: [2023] AATA 1213
Decision Date: 2 May 2023

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal (Cth) regarding the cancellation of the applicant's Subclass 500 (Student) visa. The applicant had been granted the visa on 3 August 2019, subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth). The Department of Home Affairs had cancelled the applicant's visa on the grounds that she had failed to comply with condition 8202(2)(a) by not being enrolled in a full-time registered course.

The Tribunal was required to determine whether the applicant had breached condition 8202 of her visa. Specifically, the Tribunal had to consider whether the applicant was enrolled in a full-time registered course as required by condition 8202(2)(a), and if not, whether the discretion to cancel the visa should be exercised. Condition 8202 mandates that a student visa holder must be enrolled in a full-time registered course and maintain that enrolment, unless specific exceptions apply.

The Tribunal found that the applicant was not enrolled in a registered course from 31 March 2021 to 4 February 2022, based on information from the Provider Registration and International Students Management System (PRISMS). This constituted a breach of condition 8202(2)(a). While acknowledging the applicant's explanations regarding difficulties with her education provider during the COVID-19 pandemic, including college closures and communication issues, the Tribunal concluded that these circumstances did not excuse the breach. The Tribunal considered the applicant's submissions, including her reliance on others for information and the potential impact on her family, but ultimately found that the ground for cancellation existed.

After considering the evidence and the applicant's circumstances, the Tribunal exercised its discretion to affirm the decision to cancel the applicant's visa. The Tribunal concluded that, on balance, the visa cancellation was warranted.

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? On 3 August 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 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 the applicant was not enrolled in a full-time registered course. 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 1994, 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 information from PRISMS shows that the applicant was not enrolled in a registered course from 31 March 2021 to 4 February 2022. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 31 March 2021 to 4 February 2022 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 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 5 April 2022, 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 31 March 2021 to 4 February 2022 and had therefore failed to comply with condition 8202(2)(a) of her visa. Response to NOICC On 9 April 2022, the applicant responded to the NOICC and provided the following information:·During the pandemic year of 2021 she did not receive any online course for her Business Study 3. ·She thought her college was having a semester break to plan during the uncertain times caused by the pandemic. ·She did not hear anything from the school for a period of time regarding when classes will recommence after the long suspension.·She tried to contact the school but despite several contacts by phone and messages she didn’t receive a response from the school. ·After not receiving any response from the school, she decided to visit the school however due to the lockdowns her travel was not deemed essential and for the times that she was able to travel to the school it was closed. ·She had no information from her school or agent and so she decided to give the school a little more time until the next semester. ·She was able to contact the school the following semester but was told by the head of the school that they had no information they can disclose to her and they cannot disclose when classes will recommence and enrolment. When she requested clarification she was advised that she would need to make an appointment to visit the school due to a COVID-19 procedure and the only appointment they could make for her was in a few months. ·Her last contact attempt to the school was in December 2021 and she was informed that her name was no longer in their records but they could not provide the reason for this. ·She decided to move to a new school, Queens College, to complete her studies. ·She didn’t know what to do and she relied on the people she knows to provide information and updates to her. ·She is the only family member sent overseas for education and to have her visa cancelled and not continue her studies will be a shame to her family. Evidence provided prior to the hearing Prior to the hearing the applicant provided the following documents:·CoE for ILETS Foundation course created on 24 June 2019·CoE for General English course created on 24 June 2019·CoE for Certificate III in Business course created on 24 June 2019·CoE for Certificate IV in Business course created on 24 June 2019·Flinders International College certificate dated 1 August 2020 indicating that the applicant completed the ILETS Foundation course between 13 April 2020 and 5 July 2020.·Screenshots of applicant’s Outlook Inbox emails between 15 February 2021 and 6 May 2021, described as evidence to prove that I have not received the first warning email with note stating: Search“ admissions@jlc.edu.au from DELETED ITEMS. Its didn’t come out any email was told by admin of college which is the FIRST WARNING from college.·CoE for Certificate III in Business course created on 4 February 2022·CoE for Certificate III in Business course created on 9 May 2022·Queen’s College certificate dated 21 August 2022 for Certificate III in Business·Documents described as evidence of payment of fees in 2019, 2020 and 2022