Lee (Migration) - [2024] AATA 3071

Lee (Migration) [2024] AATA 3071 (23 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Ansuk Lee
REPRESENTATIVE:  Mr Jonghyon Sohn
CASE NUMBER:  2217454
HOME AFFAIRS REFERENCE(S):          BCC2022/2199805
MEMBER:Christine Kannis
DATE: 23 April 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 23 April 2024 at 6:59am
CATCHWORDS
MIGRATION – cancellation – Student (Class TU) visa – Subclass 500 (Student) – breach of condition – not enrolled in full-time registered course – discretion to cancel visa – study history – multiple previous cancellations of enrolment – continued employment during period of non-enrolment – new enrolment made after receiving department’s notice of intention – mental and physical health and treatment, death of father and COVID restrictions – extended period of non-enrolment – health progress, return to study, academic support, course progress and intention to complete – part-time work related to study – supporting statements – employment prospects in home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359AA
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
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 21 November 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 (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 by MS Teams video on 15 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean 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 16 June 2020, 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…

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 Lee (Migration)

Details

AGLC: Lee (Migration) [2024] AATA 3071
Case: [2024] AATA 3071
Decision Date: 23 April 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Ms. Lee, a holder of a Student (Class TU) visa (Subclass 500). The dispute arose from the Department of Home Affairs' intention to cancel Ms. Lee's visa due to her failure to comply with visa condition 8202(2)(a), which requires a student visa holder to be enrolled in a full-time registered course. Ms. Lee had ceased to be enrolled in a registered course from 6 August 2020.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 existed, and if so, whether to exercise its discretion to cancel the visa. The applicant had provided extensive information in response to the Notice of Intention to Consider Cancellation (NOICC), detailing significant personal circumstances that impacted her ability to maintain enrolment. These included ongoing mental health issues, the death of her father, and the disruptions caused by COVID-19 restrictions.

In its reasoning, the Tribunal acknowledged the seriousness of visa cancellation but ultimately affirmed the decision to cancel Ms. Lee's visa. While recognising the applicant's challenging circumstances, including her history of depression, anxiety, and the impact of her father's death and subsequent COVID-19 related isolation, the Tribunal found that the ground for cancellation was established. Despite the applicant's stated intention to return to study and her claims of improved health and ambition, the Tribunal concluded, on balance, that the visa should be cancelled.

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 18 October 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 6 August 2020 and had therefore failed to comply with condition 8202(2)(a) of her visa. Response to NOICC On 24 October 2022, the applicant responded to the NOICC and provided the following information:·In 2017 she was treated for depression and panic. Her symptoms worsened during the semester and she had a meeting with her lecturer who suggested she see an international student counsellor. Upon seeing a counsellor, she was referred for medical treatment. The doctor at Queensland University of Technology (QUT) suggested she see a psychiatrist.·She began having sessions in 2018 with Dr Williams at Toowong Special Clinic, where she was prescribed medications for depression, anxiety and panic. Her condition stopped her from socialising and she became isolated. She was unable to focus on her course because of her social phobia. Treatment was slowly helping her.·In December 2018 her father became seriously ill. His doctor said she should visit him in Korea as soon as possible but her parents did not want to interrupt her studies. Her parents’ situation worsened her anxiety and depression. Her father passed away in December 2018.·She returned to Korea to see her family, where she attended her father’s memorial ceremony in December 2019. After coming back to Australia, COVID--19 lockdowns began. Her classes changed to online and she could only see her doctor by phone. She felt isolated and did not have friends who could help her. ·She received a CoE cancellation notice from QUT in August 2020 and asked about re-enrolment but admissions were delayed due to COVID-19 lockdowns and she missed the enrolment period. She was issued a Letter of Offer for the 2021 intake by QUT but her new medication caused her symptoms to deteriorate and she had a stomach problem and was not able to have meals. She had an endoscopy and the doctor was concerned her stomach issues were caused by her mental condition. She had been taking medication along with psychiatry medication for 8 months.·She contacted QUT and she was still permitted to start her course but her doctor advised that she should focus on treatment and recovery. This is the reason she did not accept the QUT Letter of Offer. ·She is much healthier and her doctors have said she is ready to study. She has ambition to continue her course and has completed 3 semesters at QUT and has 5 semesters to complete the course.·When she has completed her course she will be able to help people who suffer from depression and panic disorder based on her experience.·The past 2 years have had a number of difficulties and she has managed through them and intends to return to university to begin her studies.