Ruo (Migration) - [2024] ARTA 852

Ruo (Migration) [2024] ARTA 852 (26 October 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Miss June Wanjiru Ruo
Respondent:  Minister for Home Affairs
Tribunal Number:  2316356
Tribunal:General Member C Kannis
Place:Perth
Date:26 October 2024
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 26 October 2024 at 1:13pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – birth and adoption of the applicant’s child – mental health issues – financial hardship – employment – compelling need – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03, 2.43
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 3 October 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 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 on 21 October 2024 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. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and reg 2.43A, and other matters of government policy.
Did the applicant comply with Condition 8202?
On 15 January 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…

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 Ruo (Migration)

Details

AGLC: Ruo (Migration) [2024] ARTA 852
Case: [2024] ARTA 852
Decision Date: 26 October 2024

CaseChat Overview and Summary

The case involves the applicant, a student on a Subclass 500 (Student) visa, contesting the decision to cancel her visa by the Department of Home Affairs. The Tribunal was tasked with determining whether the cancellation was justified and whether it should be affirmed or overturned. The primary legal issue was whether the Minister's decision to cancel the visa, grounded on the applicant's failure to maintain enrolment in a registered course, was lawful and whether the Tribunal should exercise its discretion to uphold the cancellation.

The Tribunal examined the prescribed matters listed in regulation 2.43A of the Migration Regulations 1994, which require consideration of specific factors before cancelling a temporary visa for breach of a condition. The Tribunal also took into account the applicant's personal circumstances, including her mental health issues, financial hardship, and the birth and adoption of her child. Despite the applicant's arguments about the significant personal challenges she faced, the Tribunal concluded that these circumstances did not sufficiently justify the breach of her visa conditions. The Tribunal found that the prescribed matters did not mandate cancellation, but rather allowed for the exercise of discretion. After weighing the circumstances, the Tribunal affirmed the decision to cancel the visa, finding that the applicant's failure to comply with the enrolment condition warranted the cancellation.

The Tribunal's reasoning focused on the applicant's non-compliance with the visa condition to maintain enrolment in a registered course, which is a fundamental requirement for holding a Subclass 500 visa. The Tribunal recognised the personal difficulties the applicant faced, but determined that these circumstances did not provide a sufficient justification to excuse the breach of the visa condition. Ultimately, the Tribunal concluded that the personal hardships, while significant, did not outweigh the necessity to uphold the condition of maintaining enrolment. Therefore, the Tribunal decided to affirm the decision to cancel the 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 Subclass 500 (Student) visa.Date of hearing: 21 October 2024 ATTACHMENTMigration 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.ATTACHMENT – Extract from reg 2.43A of the Migration Regulations 1994 (Cth) 2.43A Minister must have regard to certain matters in considering cancellation of certain temporary visas for breach of visa condition (1)This regulation applies in relation to a visa if: (a) the visa is a temporary visa other than: (i)a criminal justice visa; or (ii)an enforcement visa; and (b) the Minister is satisfied that the visa holder has not complied with a particular condition (the relevant condition) to which the holder’s visa is subject; and (c) regulation 2.43B does not apply in relation to the visa. (2)For the purposes of paragraph 116(1A)(a) of the Act, the Minister must have regard to the following matters in determining whether the Minister is satisfied as mentioned in paragraph 116(1)(b) of the Act: (a) any written certificate issued by a certifying entity that is a government entity if the certificate:(i)was issued in relation to the visa holder in respect of a workplace exploitation matter; and (ii)sets out the matters agreed to by Immigration and the government entity; (b) any written certificate issued by a certifying entity that is not a government entity and that states that the entity considers that: (i)there is prima facie evidence that the visa holder has been affected by a workplace exploitation matter; and (ii)if any law limits the time within which a proceeding may be instituted, or a complaint made, in relation to the workplace exploitation matter—that time has not expired; and (iii)there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter by which the visa holder has been affected; (c) whether there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter to which a certificate mentioned in paragraph (a) or (b) relates; (d) whether there is any evidence that the visa holder was not complying, or is no longer seeking to comply, with the purpose of the visa; (e) whether the visa holder has committed, in writing, to do both of the following: (i)to take action, in a timely manner, to resolve the workplace exploitation matter to which a certificate mentioned in paragraph (a) or (b) relates; (ii)to comply in future with the visa conditions to which the holder’s visa is subject; (f) whether the visa holder has failed to comply with a commitment of a kind mentioned in paragraph (e) of this subregulation, or paragraph 2.43B(2)(d), (3)(d) or (4)(d), that the visa holder has previously given in relation to the visa. (3)Subregulation (2) does not limit, or otherwise affect, a power or duty of the Minister to cancel the visa under: (a) paragraph 116(1)(b) of the Act for non compliance with a condition (other than the relevant condition) to which the visa holder’s visa is subject; or (b) a provision other than paragraph 116(1)(b) of the Act. Note:For example, see subregulation

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 Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the power to cancel the visa should be exercised. For temporary visas other than criminal justice and enforcement visas, there are prescribed matters to which the decision-maker must have regard in determining whether they are satisfied as mentioned in s 116(1)(b): s 116(1A) and reg 2.43A of the Regulations. The prescribed matters are set out in the attachment to this decision. The Tribunal has also 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 4 August 2023, 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 August 2021 and had therefore failed to comply with condition 8202(2)(a) of her visa. Response to NOICC On 18 August 2023, the applicant responded to the NOICC via her migration agent and provided the following information:·She accepts she breached her student visa condition however there were circumstances beyond her control.·She is now enrolled in a Bachelor of Community Service.·She came to Australia to study Certificate III in Individual Support leading to Diploma in Nursing. She completed the Certificate III in Individual Support and then changed course from Diploma of Nursing to Diploma of Community Service.·Her life took an unexpected twist when in February 2020 she discovered she was pregnant. It was too late to consider an abortion and she had to proceed with the pregnancy. The circumstances became more challenging as she was unsure about the identity of the father.·She was without any support in Australia. The circumstances made it impossible to continue with her studies.·Her son was born on 6 August 2020. This experience posed physical, emotional, and mental challenges for her. She was young and unprepared for parenthood.·Throughout her pregnancy she reached out to Adoption Services and the Department for Child Protection (DCP) with the intention of exploring adoption for her child. Following the birth her primary concern shifted to ensuring the well-being of her child. This period was marked by episodes of depression and anxiety. During that time the COVID-19 pandemic exacerbated her challenges. She found herself in a different emotional state and unable to resume her studies. ·Despite endeavours by her and DCP they encountered difficulties in identifying suitable adoptive parents and this contributed to an increased level of stress and strain on her well-being. After 19 months a well-suited couple expressed their willingness to adopt her child and on 29 March 2022 the adoption was finalised.·Despite the successful adoption she continued to grapple with the aftermath of the situation and her mental and emotional state remained unsettled. ·Her situation took a more challenging turn when the university cancelled her CoE. She was emotionally and mentally stressed out and far away from family.·She could not enrol in the course after her CoE was cancelled.·Her anxiety and frustration increased and she could not deal with the situation. Due to everything happening she could not get back to her studies. A long time passed and she was still struggling to figure out her future pathways. When she received the NOICC it was a moment of realization that she had reached a tipping point.·She is committed to rising above the challenges and made a firm decision to continue her studies. She has enrolled in the Bachelor of Community Service.·Cancellation of the visa will cause problems and stress to her family members who have high hopes for her. They invested money for her Australian study and living and it will be wasted. Returning would hinder her ability to pursue further studies, given the intense competition for admission. ·She may not be able to secure the employment she might possibly achieve with qualifications. ,She will not be able to credit or benefit of education in Kenya. The education system in Kenya is quite different from Australia and part studies may not be recognized. ·Her goal is to become a community service professional and serve the people of her country. Initially, she was enrolled Nursing however, due to challenges she could not complete the course. Her objective is to complete the course and return to Kenya. Initially, she plans to begin her career at an entry-level role within a community service organization and eventually advance into higher positions. Ultimately, she aspires to contribute to the community service sector at the United Nations.