Lau (Migration) - [2024] AATA 1930

Lau (Migration) [2024] AATA 1930 (7 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Chi Laam Lau
CASE NUMBER:  2303048
HOME AFFAIRS REFERENCE(S):          BCC2022/5300016
MEMBER:Christine Kannis
DATE:7 June 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 07 June 2024 at 7:03pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – previous Student visa expired – period of unlawful residence – gap in enrolment – family health issues – course cancellations – availability of a compulsory course – 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 4, Public Interest Criterion 4014; Schedule 8, Condition 8202; r 1.03
CASES
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 March 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 his 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 on 27 May 2024 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Cantonese and English languages.
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.
Immigration history
The delegate set out the applicant’s immigration history which included:
·On 23 September 2017 the applicant arrived in Australia as the holder of a Student visa to undertake study at the University of New South Wales (UNSW) in a Transition Program course and Bachelor of Commerce (all specialisations) course from 26 February 2018 to15 January 2021.
·PRISMS indicates the applicant completed the Transition Program course and the Bachelor of Commerce course. PRISMS also indicates on 15 March 2021 UNSW approved a CoE for him to continue studying the Bachelor of Commerce course with a commencement date backdated to 15 February 2021 and a proposed end date of 31 May 2022 (ceased studying 2 September 2021).
·The applicant’s Student…

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 Lau (Migration)

Details

AGLC: Lau (Migration) [2024] AATA 1930
Case: [2024] AATA 1930
Decision Date: 7 June 2024

CaseChat Overview and Summary

The applicant, Mr Lau, sought review of a decision to cancel his Student (Temporary) (Class TU) visa, subclass 500. The dispute centred on whether Mr Lau had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth), which mandates that a student visa holder must maintain enrolment in a registered course of study. The matter was heard by Christine Kannis.

The primary legal issue before the court was whether the applicant had contravened condition 8202 of the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a full-time registered course and to maintain enrolment in a course that leads to a qualification at the same or a higher level than the one for which the visa was granted. A breach of this condition can lead to the cancellation of the visa under section 116(1) of the Migration Act 1958 (Cth).

The court found that the applicant had breached condition 8202. Despite being granted a Student visa on 30 March 2022, he ceased his studies on 19 May 2022. His Confirmation of Enrolment (CoE) was subsequently cancelled by his education provider on 13 July 2022 due to his failure to recommence studies. The applicant remained in Australia on his Student visa without being enrolled in a course for approximately five months, and then remained in Australia for a further three months and seven days after his enrolment was cancelled, failing to depart within 28 days as required. Furthermore, when questioned by an airline liaison officer on 6 December 2022, the applicant admitted he was not enrolled in a course but wished to return to Australia to pack his belongings.

On balance, and considering the totality of the circumstances, the Tribunal affirmed the decision to cancel the applicant's Class 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

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.Immigration history The delegate set out the applicant’s immigration history which included:·On 23 September 2017 the applicant arrived in Australia as the holder of a Student visa to undertake study at the University of New South Wales (UNSW) in a Transition Program course and Bachelor of Commerce (all specialisations) course from 26 February 2018 to15 January 2021. ·PRISMS indicates the applicant completed the Transition Program course and the Bachelor of Commerce course. PRISMS also indicates on 15 March 2021 UNSW approved a CoE for him to continue studying the Bachelor of Commerce course with a commencement date backdated to 15 February 2021 and a proposed end date of 31 May 2022 (ceased studying 2 September 2021). ·The applicant’s Student visa expired on 15 March 2021 and he became unlawful, staying in Australia for 7 months and 22 days. According to Departmental systems the applicant was sent an email on 28 February 2021 advising his Student visa would soon cease. On 16 March 2021 and 28 March 2021 he was sent further emails advising his Student visa had ceased on 15 March 2021. Departmental systems indicate that on 2 February 2021 and 28 May 2021 while he was onshore, he used the Department’s Visa Entitlement Verification Online system (VEVO) to check his visa details and therefore he was aware his Student visa was about to expire and then had expired however he chose to remain in Australia without applying for a further visa. ·On 5 November 2021, the applicant applied for a Bridging E visa. The application form stated “The applicant applied for CoE but forgot to extend his Student visa. When he realised his visa was expired, Sydney was in lockdown…” ·On 25 December 2021, the applicant departed Australia holding the Bridging E visa and as that visa was not granted within 28 days of his Student visa ceasing, he was affected by Public Interest Criterion (PIC) 4014 and was subject to an exclusion period of 3 years which prevented him from being granted certain types of visas. ·On 16 February 2022, the applicant lodged an application for a further Student visa while offshore. In the Application for a Student visa form he provided the CoE code for his intention to continue his studies in the Bachelor of Commerce course at UNSW. He commenced studying the course offshore on 14 February 2022 and was due to complete the course on 15 January 2023. The delegate assessing PIC 4014 for the application invited the applicant to comment. The applicant said he did not receive the visa expiry reminder emails because he changed his email address and was not aware his Student visa expired on 15 March 2021 and provided evidence he continued studying in the Bachelor course after the visa expired. However his VEVO checks show he was aware his Student visa expired on 15 March 2021. ·On 30 March 2022 the applicant was granted the Student visa and arrived in Australia on 5 April 2022. On 19 May 2022 he ceased his studies in the Bachelor of Commerce course and on 13 July 2022 his CoE was cancelled by the education provider with the comments “Student has failed to recommence studies in Term 2, 2022 and has not contacted the university to discuss their intentions”. According to the UNSW website, Term 2 study period was from 30 May 2022 to 25 August 2022.·The applicant did not depart Australia until 20 October 2022 and remained in Australia on the Student visa without studying for a period of 5 months. He also failed to depart Australia within 28 days after his enrolment was cancelled and remained onshore for 3 months and 7 days in non-compliance with his Student visa condition. ·On 6 December 2022, the applicant attempted to board a flight from Hong Kong to Sydney. A departmental airline liaison officer (ALO) questioned him about his studies. He advised he was aware he was not enrolled in a course but needed to return to Australia to pack up his belongings. He indicated he would apply for a different visa to return to Australia. The ALO determined he appeared to have not been complying with his visa condition by not being enrolled in a registered course of study and referred this information on to airline, who decided to offload him. ·The applicant most recently entered Australia on 6 January 2023.Did the applicant comply with Condition 8202?