Shrestha (Migration) - [2024] AATA 2478

Shrestha (Migration) [2024] AATA 2478 (23 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Usha Shrestha
CASE NUMBER:  2303125
HOME AFFAIRS REFERENCE(S):          BCC2022/4636894
MEMBER:Christine Kannis
DATE:23 June 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 23 June 2024 at 12:54pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa –– applicant was not enrolled in a full-time registered course – breached condition 8202 – the breach did not occur in circumstances beyond the applicant’s control – long Covid – there was non-compliance by the applicant in the way described in the notice – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116
Migration Regulations 1994 (Cth), Schedule 8
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 27 February 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 17 June 2024.
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 7 December 2021, 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…

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 Shrestha (Migration)

Details

AGLC: Shrestha (Migration) [2024] AATA 2478
Case: [2024] AATA 2478
Decision Date: 23 June 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Ms Shrestha, who sought review of the cancellation of her Student (Temporary) (Class TU) visa, subclass 500. The Department of Home Affairs had initiated cancellation proceedings on the grounds that Ms Shrestha had breached condition 8202 of her visa by ceasing to be enrolled in a registered course. Ms Shrestha contended that her non-compliance was due to circumstances beyond her control, specifically suffering from long COVID.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether the Tribunal should exercise its discretion to cancel the visa. This required determining if Ms Shrestha had failed to comply with a condition of her visa, specifically condition 8202(2)(a) which mandates enrolment in a full-time registered course, and whether any such non-compliance occurred in circumstances beyond her control.

The Tribunal found that Ms Shrestha had indeed failed to comply with condition 8202(2)(a) as she had ceased to be enrolled in a registered course from April 2022. While acknowledging Ms Shrestha's submissions regarding her long COVID diagnosis and its impact on her ability to study, the Tribunal concluded that these circumstances did not constitute a situation beyond her control that would excuse the breach. The Tribunal noted that the medical evidence provided primarily related to periods of illness and carer's leave, and did not definitively establish that her inability to maintain enrolment was solely attributable to circumstances beyond her control for the entire period of non-compliance. After considering all the circumstances, including the applicant's submissions and departmental guidance, the Tribunal determined that the visa should be cancelled.

Consequently, the Tribunal affirmed the decision of the Department of Home Affairs to cancel Ms Shrestha'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

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 2 February 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 5 April 2022 and had therefore failed to comply with condition 8202(2)(a) of her visa. Response to NOICC On 8 February 2023, the applicant responded to the NOICC and provided the following information:·The conditions that occurred for her not to study for almost a year were: oShe had been suffering from long COVID since April and had COVID twice, in April and in December. She has been unable to focus on her studies or work since then. She has gone to the doctor numerous times. oShe has studied diligently in Australia ever since her arrival. She has completed many courses. oShe has been under severe mental stress and has started to recover and wants to continue her course and finish her studies before returning to Nepal. oShe has enrolled in another college and wants to finish her studies. At the time of responding to the NOICC the applicant provided the following documents:·Medical certificate dated 10 May 2022 certifying the applicant having carer leave for her son with acute viral infection for the period from 2 May 2022 to 12 May 2022 and she will be unfit to continue her usual occupation. ·Medical certificate dated 10 May 2022 certifying the applicant’s son is receiving medical treatment (Acute Viral Illness) during the period from 2 May 2022 to 12 May 2022 and that she will be unfit to continue her usual occupation. NB Carer was in attendance for the entire period.·Medical certificate dated 11 May 2022 certifying the applicant received medical treatment for COVID infection/post recovery for the period from 2 May 2022 to 11 May 2022 and she will be unfit to continue her usual occupation and can return to work on 12 May 2022.·Medical certificate dated 18 August 2022 certifying the applicant received medical treatment for the period from 18 August 2022 to 20 August 2022 and she will be unfit to continue her usual occupation. ·Medical certificate dated 27 October 2022 certifying the applicant received medical treatment for the period from 27 October 2022 to 22 October 2022 and that she will be unfit to continue her usual occupation. ·Medical certificate dated 3 November 2022 certifying the applicant received medical treatment for the period from 3 November 2022 to 5 November 2022 and that she will be unfit to continue her usual occupation. Evidence provided at hearing