Mwaura (Migration) - [2022] AATA 5096

Mwaura (Migration) [2022] AATA 5096 (16 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Grace Mwaura
CASE NUMBER:  2005050
HOME AFFAIRS REFERENCE(S):          BCC2019/5072730
MEMBER:Christine Kannis
DATE: 16 August 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 16 August 2022 at 10:42am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose for travel and stay in Australia – significant breach – extent of the breach – non-commencement of studies – psychological trauma – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
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 25 February 2020 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 8 August 2022 to give evidence and present arguments.
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 12 April 2017 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…

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 Mwaura (Migration)

Details

AGLC: Mwaura (Migration) [2022] AATA 5096
Case: [2022] AATA 5096
Decision Date: 16 August 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 500 (Student) visa was cancelled. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a full-time registered course. The applicant's visa was cancelled on the basis that she was not enrolled in such a course.

The Tribunal was required to determine if the applicant had indeed breached condition 8202(2)(a) of her visa by failing to maintain enrolment in a registered course. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account the circumstances presented by the applicant.

The Tribunal found that the applicant had breached condition 8202(2)(a) as her enrolment in a registered course had been cancelled on 16 July 2018, and she had not subsequently enrolled in another full-time registered course. While acknowledging the applicant's submission regarding psychological trauma stemming from an alleged assault and subsequent termination of pregnancy, the Tribunal concluded that these circumstances did not outweigh the significant breach of her visa conditions. The Tribunal noted that the applicant's proposed future study plans would commence after her current visa expired.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 12 April 2017 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 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 the PRISMS shows that the applicant has not been enrolled in a registered course of study since her enrolment in a Bachelor of Health Science was cancelled on 16 July 2018. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 16 July 2018 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 10 February 2020 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 and was therefore failing to comply with condition 8202(2)(a) of her visa. Response to NOICC On 17 February 2020 the applicant responded to the NOICC and provided the following information:·In May 2017 she came to Adelaide to pursue a Diploma in Health Science at the University of South Australia. Before she joined university she did a Certificate III in Aged Care and Disability and completed it in November including placement for self-development. ·She was drugged and raped in June 2018 but did not report it to the authorities. She was unsure of what happened as it was “but a vague memory” and she could not identify the man. This incident resulted in a pregnancy she later terminated. ·She was psychologically traumatised by the termination of her pregnancy which went against her religious and personal values. An invoice dated 4 September 2018 addressed to the applicant from SA Pathology for the services undertaken on 25 July 2018 was provided. A receipt for payment of the invoice was provided. A Pharmacy Patient Invoice dated 31 July 2018, from Flinders Medical Centre indicating the purchase of medication for pregnancy termination and a copy of Emergency Care Following Termination of Pregnancy from Flinders Medical Centre indicating follow-up appointments on 2 August 2018 and 10 August 2018 were provided.·She undertook extensive research and advice from mentors during her time away from school and was able to inquire into the study of Early Childhood Development and subsequently furthering this study. The course is set to begin in March 2020, after her current visa expires. This pathway will ensure that she does not have any significant study gaps during her temporary stay in Australia as well as give her parents ample time to prepare before she enrols into the bachelor program.·She has chosen to study in Adelaide due to its strong prospects in career opportunities. Studying and gaining this qualification from a reputable South Australian education provider such as Southern Academy of Business Technology would put her at an advantage in gaining employment back home.·Her parents have agreed to fund her course and accommodation for the duration of her stay in Australia.Evidence at hearing