NGUYEN (Migration) - [2020] AATA 4661

NGUYEN (Migration) [2020] AATA 4661 (7 October 2020)

Corrigendum

DIVISION:Migration & Refugee Division
APPLICANT:  Miss Minh Nhat NGUYEN
CASE NUMBER:  1831356
DIBP REFERENCE(S):  BCC2018/3821210
MEMBER: DrJason Harkess
DATE OF DECISION:  7 October 2020
DATE CORRIGENDUM
SIGNED:19 November 2020
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

The words ‘the decision to cancel the Applicant’s visa ought to be affirmed.’ at paragraph 9 should be replaced with ‘the decision to cancel the Applicant’s visa ought to be set aside.’.

DECISION RECORD

DIVISION:		Migration & Refugee Division
APPLICANT:		Miss Minh Nhat Nguyen
CASE NUMBER:		1831356
HOME AFFAIRS REFERENCE:		BCC2018/3821210
MEMBER:		Dr Jason Harkess
DATE:		7 October 2020
PLACE OF DECISION:		Melbourne
DECISION:		The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa

Statement made on 7 October 2020 at 11:22am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – stress in new environment, language barrier and father’s health – psychological treatment, marriage to Australian citizen and return to study – visa now expired – under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 127
Migration Regulations 1994 (Cth), r 2.55(3)(d)(ii), (8), Schedule 2, cl 500.611, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

The Applicant is a citizen of Vietnam and is 23 years old. She seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 23 October 2018 cancelling her Student (Temporary) (Class TU) Subclass 500 visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant lodged her review application with the Tribunal on 25 October 2018.

Original Visa Grant

The Applicant’s visa was granted on 5 October 2016. It was granted because a delegate of the Minister had determined that she met the primary criteria for the grant of a student visa.[1]
[1] The primary criteria for the grant of a student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.
The visa had an original expiry date of 26 December 2019 before it was cancelled. It provided for more than three years and two months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study. Specifically, the visa had been granted so that the Applicant could complete an English course followed by a Bachelor of Business course.

Reasons for Cancellation

The Applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s 116(1)(b) of the Act. The delegate found that the Applicant had not complied with a condition of her visa. Specifically, it was found that the Applicant had failed to comply with that condition which required her to maintain enrolment in a registered…

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.

Keep reading for free

Create a free CaseChat account to read NGUYEN (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] AATA 4661
Decision Date: 7 October 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Nguyen, a Vietnamese national who held a Student (Temporary) (Class TU) visa, subclass 500. The Department of Home Affairs had cancelled Mr. Nguyen's visa because he was not enrolled in a registered course of study. Mr. Nguyen sought review of this decision by the AAT.

The primary legal issue before the Tribunal was whether the cancellation of Mr. Nguyen's visa was justified under the Migration Act 1958 (Cth). Specifically, the Tribunal had to determine if there were compelling reasons for Mr. Nguyen's failure to maintain enrolment in a registered course and whether these reasons, in conjunction with other factors, warranted setting aside the cancellation decision.

The Tribunal acknowledged that Mr. Nguyen's failure to maintain enrolment was due to significant personal difficulties, including stress associated with a new environment, a language barrier, and his father's ill health. It also took into account that Mr. Nguyen had since received psychological treatment, married an Australian citizen, and had returned to study. Considering these circumstances, the Tribunal found that the cancellation of the visa was not in the best interests of Mr. Nguyen and that there were compelling reasons to set aside the decision. The Tribunal therefore set aside the decision to cancel Mr. Nguyen's visa.

Orders